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Just kill off the Supreme Court fillibuster: James Robbins

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James S. Robbins

Published 10:37 a.m. ET Feb. 10, 2017 | Updated 38 minutes ago

Senate traditions survived the Civil War, but they won’t outlive today’s partisanship.

Senate Minority Leader Chuck Schumer’s threat to filibuster Judge Neil Gorsuch’s Supreme Court nomination probably won’t keep the judge off the high court. But it could spell the end of the remnants of the Senate cloture rule as it applies to presidential nominees.

Preventing a vote is the antithesis of democratic procedure. James Stewart’s popular portrayal of the filibuster in the 1939 film Mr. Smith Goes to Washington is a romantic image, but essentially at odds with how politics is supposed to work. The American system of government is based on compromise, a value enshrined throughout the Constitution. The Senate owes its very existence to the Great Compromise of 1787. The original Filibusters, by contrast, were uncompromising Caribbean pirates, and the verb “to filibuster” initially referred to mercenary groups in the 1850s who invaded and plundered Cuba and Central America. The expression later was applied to taking piratical control of the Senate. It was not a term of endearment.

It is noteworthy that this type of self-indulgent wrecking was rare in the Senate’s early history. For over a century the upper house did not need a cloture rule. Even though one Senator could in theory shut the body down, this rarely happened. When contentious issues arose, they were worked out. The Senate survived the sectional crises, Civil War and Reconstruction with no mechanism to force the end of debate.

This changed 100 years ago when a group of 11 Senators led by Wisconsin Republican Robert La Follette filibustered the Armed Ship Bill promoted by President Woodrow Wilson on the eve of America’s entry into the First World War. Wilson scored the “the little group of willful men, representing no opinion but their own,” who had reduced the U.S. to a “helpless and contemptible” position in the world. In response, the Senate adopted the cloture rule, which at the time required a two-thirds vote to end debate. But cloture was still an extraordinary measure. In the first 53 years of the rule, it was invoked only 8 times.

Cloture became more frequent in the 1970s. In 1975 Democrats exploited a 61-seat Senate majority to lower the cloture bar to 60 votes. In theory this would make it harder to obstruct the work of the Senate. In fact, with rising partisanship and declining collegiality, obstruction became more common and the number of cloture invocations skyrocketed. From 1991 to 2000 it was used 92 times. In the next decade, 204 times. Cloture-mania peaked in the 113th Congress (2013-14), with 253 motions filed and 187 passed.

Then-Senate majority leader Harry Reid eviscerated cloture in November 2013 with a rule change known as the “nuclear option,” under which presidential nominees for the judiciary or executive branch offices could move to confirmation by a simple majority vote. Reid had been frustrated by Republicans blocking President Obama’s nominees and said, “It’s time to get the Senate working again.” That is, working without Republican voices. But the nuclear option’s fallout has descended with the current Senate GOP majority. Democrats are powerless to stop President Trump’s nominees, provided Republican senators maintain a united front. Yet they have used every procedural trick in the book to slow cabinet conformations to a crawl and disrupt the smooth transition of power in the executive departments. New Jersey Senator Cory Booker even testified against fellow Senator and now Attorney General Jeff Sessions, which had never happened in the history of the Senate.

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Reid’s rule change did not apply to Supreme Court nominees, which gives Democrats an opportunity to block Gorsuch. Or so they think. Senate Republicans could easily change the rules to extend the nuclear option, on the grounds that the minority is putting scorched-earth politics over principle. For example, Democrats had said they would mount a filibuster before Gorsuch was even nominated. There have been no hearings for them to assess his competence, and some Democratic leaders said they would not even grant Judge Gorsuch a courtesy call. If Democrats aren’t taking the confirmation process seriously, why should they be given an opportunity to derail it? Just declare the century-old experiment in trying to maintain the spirit of the 19th century dead and be done with it.

James S. Robbins, an expert on national security, foreign affairs and the military, is an author and a member of USA TODAY’s Board of Contributors. His books include This Time We Win: Revisiting the Tet Offensive.

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