Neil Gorsuch, and we will be witnessing a battle for the ages.
Are we at DEFCON 2 (next step to nuclear war) or at DEFCON 1 (nuclear war is imminent)? Even more maddening is that our knowledge of this depends on arcane words like “filibuster” or “cloture” that we learned and forgot in civics class -if our school still had that in the curriculum, that is.
So how did we get here?
The filibuster was a theoretical, then real, legislative tactic first used in the 1840’s. It was available in both the House and the Senate and it was simply a delaying tactic where the party opposing a piece of legislation or a presidential nominee could use limitless debate as a threat to the majority party. Theoretically, they could keep debate open forever so that a bill or nominee would never come to the floor.
The House soon grew weary of this and created time limit rules for debate. The Senate, however, kept the unlimited filibuster alive for many years and it wasn’t until 1917 that the Senate finally passed a rule change called “cloture.” Calling for a cloture could stop a filibuster. If two-thirds of the Senate voted for cloture, then a vote could be held right away on a nominee or bill. The two-thirds majority was lowered to three- fifths or 60 votes in 1975.
Filibusters were a fairly uncommon practice over the years. Presidents Eisenhower, Kennedy, Johnson, Nixon, and Bush 41 faced no filibusters, at all. Presidents Carter and Reagan had two each. Clinton and Bush 43 had nine and seven filibusters, respectively.
Under President Obama, however, the minority Republicans more than made up for the paucity of filibustering in years past. The Obama administration faced 82 filibusters, which blocked his nominees in the Senate. There have only been 86 successful filibusters against all other presidents combined.
Finally, Harry Reid and his Democrats changed Senate rules in 2013, eliminating the filibuster for presidential nominees, except in the case of Supreme Court Justices.
In this case, I take no sides. Either you believed that the heroic Republicans were filibustering to save the republic from Obama’s madness or you believe the nasty Republicans did everything they could to undermine the Great Obama. It depends purely on your ideology and I won’t be able to convince anyone.
Then, in the last year of his presidency, Barack Obama nominated Merrick Garland to fill the vacancy created by Justice Scalia’s death. Republicans virtually refused to meet with him, much less hold an up or down vote. On this one, however, I would be willing to bet all I have that the Democrats would have done exactly the same thing as the Republicans, if the situation were reversed. That said, the Democrats’ angst is certainly understandable.
These events are what set the stage for today’s Senate drama and we are now breaking historic ground. Will the Democrats filibuster and, if they do, will the Republicans choose the so-called “nuclear option” and eliminate the filibuster by changing the Senate rules with their majority?
It’s with a horror-filled fascination that America watches this process unfold. We really don’t know what will happen, for sure. We’re in uncharted territory and neither outcome is good for us.
Jon Saltzman is the Publisher and Senior Editor of Political Storm.