As the Senate moves toward a major confrontation over judicial nominations, it might be useful to put the tradition of filibustering in context.
The filibuster in its present form is not enshrined in the U.S. Constitution, which says the two houses of Congress can make their own rules. In the early years, both the House and Senate allowed unlimited debate, meaning any member could hold up a vote on a measure if the member talked long enough, and a small group could postpone it indefinitely.
Early on the House adopted rules to limit debate. The Senate allowed unlimited debate until 1917, when it adopted rules allowing two-thirds of the body to end debate by invoking what’s called cloture. Filibusters were used in the 1950s and 1960s to block civil rights and other legislation. In 1975, the Senate changed its rules to allow 60 members to close debate and bring on a vote.
Although not a part of the Constitution, the filibuster is firmly in the tradition of limited government that protects minority rights from being trampled by a majority, which the Constitution tried to do in numerous ways. The Bill of Rights, for example, amounts to a lengthy statement that there are certain things a majority simply can’t do, no matter how popular they may be at the moment.
In the Senate today, Democrats are using filibuster threats to prevent up-or-down votes on judicial nominees. This is unusual, but is it unprecedented? It depends on how you define it.
Republicans prefer a narrow definition, to apply only to cases where the nominee would have had a majority if the filibuster had been ended by cloture. Thus they say it doesn’t apply to the case of Abe Fortas, nominated as chief justice by President Lyndon Johnson in 1968. Southern Democrats and Republicans started a filibuster and beat back a first attempt at cloture, whereupon Fortas withdrew himself. Republicans say there was probably a majority to defeat him if he had come before the full Senate for a vote, however, so that isn’t a precedent.
There have been a few other attempts to prevent a vote on judicial nominations, but they were all ended by successful cloture votes.
Both parties can be charged with hypocrisy. When they were a minority, Republicans cherished the right to filibuster. In 1995, a group of Senate Democrats introduced a proposal to end all filibusters, which garnered 19 Democratic votes.
Senate Majority Leader Bill Frist, R-Tenn., doesn’t propose anything so drastic. His version of the “nuclear option” would change the rules so a filibuster wouldn’t be allowed to prevent an up-or-down vote on judicial nominations. The Republicans have the right to do this under Senate rules, and almost certainly have the votes. The Democrats have threatened to tie the Senate in knots for the rest of the year if they do.
As charming as that prospect might be, we hope Senate Republicans don’t change the rules. That would invite future majorities to change the rules more often to make it easier to pass pet legislation. Most of the time this would work to the disadvantage of limited government and make it easier to extend government power.
There’s no unchanging principle here. On balance, however, although the results may sometimes be perverse, the easier it is to slow down government action, the better.