James Madison Would Approve

11.22.13

Going Nuclear

I actually think it's sad and regrettable that it's come to this. My ideal United States Senate is basically no different from David Broder's--I'd like a chamber filled with reasonable men and women who understood that they held in their hands the responsibility to govern the republic with cool heads and with respect for the range of point of views represented among them.

That may sound like a bunch of high-flown hooey, but really, this is, or is supposed to be, democracy, and what some people call high-flown hooey is what other people call our founding principles. At its best moments, of which we haven't seen any in recent years, the Senate has functioned as I described above. The Voting Rights Act is one of the more sterling examples, but there are more recent ones, too, up to Reagan's time. After that the rot set in.

It's amazing to look at the list of senators in the 98th Congress, to pick one at (almost) random--it's the year I worked on the House side as a youngster. It sat from 1983 to 1985. You can look down this list for yourself, noting the number of Republicans from blue states and Democrats from today's red states (fewer, but still a decent number). This meant that the moderate Democrats of Tennessee and such places and the moderate Republicans of Illinois and such places had a voice in the Senate. That's been wiped out. I don't care if it sounds like High Broderism. I do regret it. We all should.(Where I depart from High Broderism, of course, is in his insistent claim when he was around that both sides were equally to blame for the toxicity.)

So I sort of lament that Harry Reid did what he did yesterday, but the problem has just gotten ridiculous, and don't let anybody tell you it's not a problem specifically of Republican obstruction. Yes, Democrats have done it too, but the historical pattern since the 1970s has essentially been that Republicans started blocking, taking the use of the filibuster up to threat level A; then Democrats, when it was their turn, also increased to level A. Then Republicans took it to threat level B, and the Democrats responded in kind. Then level C.

But with respect to judges, Republicans have always been worse. Don't be fooled by anecdotal examples. The percentages are here. Republicans approved only 79 percent of Bill Clinton's judicial nominees. But did Democrats counter? No; they approved 91 percent of George Bush's. Now, Republicans have approved 76 percent of Obama's. So they're at level D, while Democrats stayed at C or arguably even B.

And with regard to executive-branch appointments, it's been even worse. There's just no justification in the world for the idea that it should have to count as some major political victory for someone to be appointed to head a government agency. None in the world. It should be routine.

This is not how things were ever supposed to be. I was glad to see that The New York Review re-posted my 2010 piece on the history of the filibuster yesterday. Read at least the first third of it, where I give some of the background. Most of the founders did not want supermajorities, which is what a requirement for 60 votes is. This was based on their recent personal experience. The Articles of Confederation had required nine of the 13 states to pass most items, and it was a disaster. 

Besides, they laid out specific cases in which they said a supermajority was required: to pass treaties, to impeach elected officials, to expell a member, to overturn a veto, to amend the Constitution. We may reasonably assume that they didn't like the idea otherwise. James Madison wrote that supermajority requirements for basic functioning of government would turn democracy on its head:

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.

And so it has. The minority has become the majority by needing only 40 votes to stop something from happening. So the change is necessary and overdue. I have little doubt that the Republicans will someday make the Democrats pay. But a Republican president who is duly elected as Obama was will have the right to fill the executive branch and the bench with the people of his or her (her? gulp!) choosing. Knowing McConnell, he'll take it a step further and come up with some false equivalence kind of thing that will have the effect of eliminating cloture at a certain stage in the deliberative process--in other words, it won't be limited to nominations. But on balance I probably support that, too, even though it would like to outcomes I'd disagree with when a Republican president and majority were seated.

But that's democracy. What we have now ain't.