What Republicans are doing is wrong. Refusing to fill vacancies on the United States Court of Appeals for the Federal Circuit, regardless of President Obama’s choice of nominee, is an unacceptable response to the reality of a Democrat occupying the White House. It is inexcusable to hold arguably the second most important court in the country hostage. I have no problem with ideological opposition to individual nominees, but I find it problematic to predetermine that the court’s vacancies should not be filled.
In response, Democrats in the Senate took an understandable but deplorable step to trigger the “nuclear option” in Senate rules. As a result, for presidential nominations other than for the Supreme Court, the Senate can end debate with just 51 out of 100 votes, rather than the previously required sixty. This effectively eliminates the filibuster in these cases, as the majority party can simply end debate on a nominee at any point.
Though this might appear to be a rational reaction to an obstinate party of “no,” the elimination of the filibuster represents much more than the removal of a venerated Senate tradition. The filibuster’s existence speaks directly to the structure, composition and ideals of the American government and has been a core way the Senate has exercised its “advice and consent” responsibilities as enumerated in the Constitution.
Our bicameral legislative branch was designed in the Great Compromise of 1787. The House of Representatives was designed to be a body closer to the people — as evidenced by its short, two-year terms — than was the Senate, which has fewer rules to encourage more debate. Yes, the filibuster provided a platform for iconoclasts such as Strom Thurmond to deliver polemics about civil rights legislation, but that very platform is precisely why the Senate exists. And while some might say the filibuster allows a single senator representing a minutia of the American public to hijack Senate debate, the Senate was intentionally designed to elevate dissenting and minority viewpoints. By allowing all states to have the same number of senators, the body inherently allows certain voices to represents fewer actual Americans. The Senate should remain a place where debate cannot simply be ended by 51 votes. It was not designed to enhance the role of the majority party.
The House of Representatives, by design, is run by a speaker who retains quasi-authoritarian power in that he or she may determine the rules of debate surrounding an issue. The speaker can prevent all debate from occurring and can choose not to recognize minority party members who wish to speak on the floor. The Senate was created explicitly to counteract this and to protect minority speech, regardless of whether the content is germane. In removing the filibuster for key presidential appointments and nominations, the Democrats have moved the Senate toward a House-like structure that disrespects not only the Great Compromise but also the foundational structure of our bicameral system.
The nuclear option is also disastrous because it moves the American government, one based on the separation of powers, in a very parliamentarian direction. Most parliamentary systems operate with a “government” and an “opposition,” in which the government makes policy often with very little interaction with the opposition. Because the government coalition has the necessary number of seats to pass legislation, it usually does not work with the opposition in crafting policy.
By granting itself the authority to end debate with a simple majority, the Senate has removed the impetus to talk with the minority party. The U.S. government functions because of cooperation between the two parties, even in harshly partisan times, rather than in a government versus opposition mindset. Republicans’ repeated filibustering of executive branch nominees — such as Sen. Rand Paul’s, R-Ky., rant against drones and John Brennan’s nomination to run the Central Intelligence Agency — show that there needs to be more dialogue to address the rift between Republicans and Democrats over contentious matters.
We cannot forget that filibusters can often be used for things we, as Brown students, often view positively. Former Progressive Sen. Robert La Follette, who fought for economic equality and more “direct democracy,” often used the filibuster to draw attention to his policies. Texas State Sen. Wendy Davis, a Democrat and the legislator who valiantly filibustered restrictions on abortion rights, drew national attention to the policy debate, even though the bill was eventually enacted.
Brown is lucky to have one of the leading experts on the filibuster, Adjunct Lecturer in Political Science and Public Policy Richard Arenberg, on its faculty. Arenberg, in the title of a book he wrote, refers to the filibuster as “the soul of the Senate.” The Senate was designed, and the filibuster arose, to encourage thorough political discourse, rigorous debate, cross-party cooperation and slow deliberative action. Simply put, unlike the House, the core function of the Senate is to protect dissenting opinions from the tyranny of the majority.
Zach Ingber ’15 would love one day to read the phonebook on the Senate floor. He can be reached at zachary_ingber@brown.edu.
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