Why do we still have the filibuster?

Sandy Levinson

The Senate has now been in session a week, and the filibuster remains untouched.  Why?  One possibility is that Mitch McConnell, the Senate Majority Leader, is a man of integrity who actually believes in the importance of safeguarding minority rights. I reject the plausibility of any such explanation:  There is no evidence that McConnell has any integrity at all;  he is a Republican apparatchnik whose sole and exclusive concern is the success of the Republican Party.  He correctly believed that it would not help the Republican Party to be seen as collaborating with President Obama, so he devoted the last eight years to making sure that Obama would be able to claim no accomplishments that required any cooperation from the Republican Party.  He guessed wrong on the 2012 election, but we ought to recognize that it was in fact a close call.  And it appears that the Republicans might have guessed right on what they could do, propagandistically, with regard to discarding Obamacare and riding it to victory in 2016.

And McConnell evidenced his full-scale partisanship by refusing to give Merrick Garland even the courtesy of a hearing.  (Does anyone seriously believe, incidentally, that he would have allowed Hillary Clinton, had she won without carrying the Senate, to name anyone to the Supreme Court? I NOTE FOR THE RECOFD THAT NONE OF THE DISCUSSANTS HAS SUGGESTED THAT MCDONNELL WOULD IN FACT HAVE DONE SO.  INSTEAD, ONE CAN BE CONFIDENT HE WOULD HAVE SUBMITTED TO TED CRUZ AND OTHER MAD-DOG REPUBLICANS WHO WOULD HAVE ARGUED THAT CLINTON WAS AN ILLEGITIMATE PRESIDENT AND DID NOT EARN THE RIGHT TO NAME ANYONE TO THE SUPREME COURT.)
Unlike some, I don't think that he violated the Constitution in doing so, not do I think it would violate the Constitution to leave the Scalia seat vacant for four more years.  I strongly hope that the Democrats filibuster anyone nominated by Trump and, at the least, force the Republicans to eliminate the filibuster for the Supreme Court.  If one wants to be generous to McConnell, one might concede that he genuinely believes that the country would be better off with a conservative Supreme Court, so it's not the same kind of partisanship as the abject refusal to cooperate with a sitting Democratic President for fear that he will profit electorally from any success.

So return to the question, why do we still have the filibuster?  Once one rejects any "principled" behavior by McConnell, as I think we must, then there are two other possibilities.  The first is that, as Washington told Hamilton, "you don't have the votes." I.e., there were at least three Republicans who, for whatever reason, were unwilling to do in the filibuster, even if, by definition, it will make it more difficult for the Republicans to pass their alleged agenda for the nation.  The presupposes, incidentally, that every Democrat would vote to retain the filibuster, so that there must be at least 51 Republicans to outvote the Democrats plus Joe Biden, who remains President of the Senate until January 20.  Perhaps that is the best explanation.  If McConnell were confident he had the votes, then why not use them?

But let me suggest another one.  McConnell doesn't want to eliminate the filibuster precisely because it would force the Republican Party to take full responsibility for governing.  He realizes that it would be insane, for example, simply to repeal Obamacare without a genuine replacement, which the Republicans simply don't have.  So it is far better to be able to blame recalcitrant Democrats for defeats of the Republican program (and allow unscrupulous Republicans to vote for idiotic legislation secure in the belief that it will not in fact get through the Senate) than to take genuine responsibility for the legislative program.  If one adopts this perspective, which I obviously think has something to be said for it, then it is the Democrats who should in effect be criticized for their insistence on maintaining the filibuster.  They are helping to keep providing the rope by which the GOP hopes to hang Democrats in the 2018 mid-terms and then the 2020 general election.  And, of course, if the filibuster is maintained, and if the Democrats win in 2020, as one might well predict they will, then it would in fact be impossible for the Democrats to succeed in passing their own programs, even assuming a miracle recapture of both the House and the Senate, given Republican obstructionism in the Senate.

To be sure, an added amount of truly dreadful legislation would be passed in the absence of the filibuster, and the Republicans could pack the Supreme Courtt (as they can do with the "inferior" federal judiciary, given the absence of a filibuster there) should anything happen to Ginsburg, Breyer, or Kennedy.  No doubt most Democrats think it important to be able to block the worst GOP excesses.  I join in that hope, but what I really want is for some honorable Republicans--and I continue to believe that there are some such in the Senate--to be forced to join with Democrats in saying no to the craziness of the Trump-Ryan Administration.  If there are no longer any honorable Republicans, then we need to think about even more serious responses, including secession.

In any event, as Heather Gerken so well put it, we are in the eye of a hurricane.  The US is in a struggle for survival as a nation worth cherishing, and we must think and behave accordingly.  Democrats must be far more calculating than is our/their wont.  The refusal of McConnell to call for eliminating the filibuster is in fact a poisoned chalice and should be recognized as such.  The Democratic Party should become a full-scale Party of Opposition (taking its lessons from McConnell over the past eight years) and doing whatever it can to make it obvious to one and all, especially the pathetically deluded Trumpistas who believe that he or the GOP really care one whit about the fate of the working class, that the GOP is in control and should be assessed on what it does with its power.

Perhaps I am wrong in my analysis.  But I will be intrigued by the reasons that any discussants give for the Republican failure to eliminate the filibuster.

[UPDATE:  ANY REMAINING ILLUSIONS ABOUT THE INTEGRITY OF MITCH MCDONNELL SHOULD BE DISPELLED BY HIS INSISTENCE THAT THE SENATE RUSH TO CONFIRM ALL OF TRUMP'S NOMINEES TO THE CABINET EVEN IN THE ABSENCE OF TRADITIONAL INFORMATION ABOUT POTENTIAL CONFLICTS OF INTEREST, ETC.  AS THE TIMES HAS NOTED, EVERY PRESIDENT SINCE GEORGE H. W. BUSH HAS HAD AT LEAST ONE NOMINEE GO DOWN BECAUSE OF INFORMATION DISCOVERED IN THE RUN-UP TO CONFIRMATION.  MCCONNELL IN 2009 INSISTED ON SCRUPULOUS ADHERENCE TO THE RULES.  NOW, PERHAPS HAVING BEEN BOUGHT OFF BY THE NOMINATION OF HIS WIFE TO BE SECRETARY OF TRANSPORTATION, THOUGH ONE SUSPECTS HE WOULD BE ADHERING TO THE REPUBLICAN VERSIN OF THE FUHRER PRINZIP EVEN IF HE DIDN'T HAVE THE FAMILIAL INCENTIVE TO DO SO.  IN ANY EVENT, I FAIL TO UNDERSTAND WHY ANY DISPASSIONATE ANALYST WOULD RESPECT HIM AS A PUBLIC SERVANT.]




Posted 12:13 AM by Sandy Levinson [link]