Posted by on November 22, 2013 in Blog

By Isaac Levey
Legal Fellow

Most people don’t get excited about the rules of the United States Senate. Even among that small population that gets excited about anything related to the Senate, those interested in its procedure represent the tiniest of subsets. But the United States Congress, like all institutions, is made up of rules and structures. And while changes to the structures of political institutions aren’t fun to discuss, and don’t make for sexy cable talk-show topics, they can fundamentally change the way the system functions. Just last month excessive gerrymandering and closed primaries helped cause a government shutdown.

So a D.C. politics nerd who does follow these issues closely can understand why his friends and coworkers have been less excited than he is about the vote the U.S. Senate took Thursday afternoon. The short, headline-length version is, “the Senate got rid of the filibuster.” Even that sounds boring, and when it’s properly explained (because the short version isn’t totally accurate), it can sound even more esoteric. But the ‘inside-baseball’ nature of the issue shouldn’t obscure its importance: it’s not a big exaggeration to say that the change the Senate made yesterday might be, in the long run, the most consequential vote of President Obama’s second term. So it’s appropriate to take stock of what happened, and why it matters.

The Way Things Were

The Senate has always seen itself as the more stable, less dynamic House of Congress. It has much less turnover than the House of Representatives, since Senators’ terms are six years and only a third of the body is up for election every two years, while the whole House has to be reelected each cycle. Since Senators represent a whole state, rather than a particular district, they have more varied constituents voting for them, and have to appeal to a wider group. This makes them more likely to be closer to the political center than their counterparts in the House; they are designed to be a check on the shifting whims of majorities. These factors make the Senate, in many ways, a less representative body than the House is. And obviously, this is emphasized by the Senate’s fundamentally antidemocratic purpose and nature: each state is represented equally, regardless of population. The population of California is about 66 times that of Wyoming, yet each state has two Senators. The Constitution requires districts in the House of Representatives to all be roughly the same size, in accordance with the principle of “one American, one vote.” In contrast, the Senate is “one Californian, one vote; one Wyomingan, 66 votes.”

No rule or institution of the Senate embraces its undemocratic nature more than the filibuster. It essentially allows unlimited debate on a measure, without it coming to a vote, as long as one Senator insists on debating it. The classic, purest form is the “talking filibuster:” when one Senator may hold up business by “holding the floor” and speaking for as long as he or she can physically stand, as immortalized by Jimmy Stewart in Mr. Smith Goes to Washington. A filibuster is broken by a motion for “cloture,” which ends debate and brings the issue to a simple majority vote. The filibuster has evolved over the decades, and now can be broken with 60 votes for cloture. But it allows 41 Senators to thwart the will of 59.

Importantly, the filibuster is the only one of the Senate’s antidemocratic tools that is not required by the Constitution. The Constitution requires each state to have two Senators, regardless of size, and it requires their terms to be three times as long as their counterparts in the House and their elections staggered. But the Constitution expressly gives each House of Congress the power to make its own rules. The word “filibuster” appears nowhere.

What Happened Thursday

On Thursday, the Senate exercised that power to make its own rules. Led by Majority Leader Harry Reid (D-NV), the Senate voted 52-48 to limit the minority’s right to block the Senate’s action. Specifically, the new rule allows 51 Senators to cut off debate and proceed to a vote on all presidential nominations, except to the United States Supreme Court. It forbids filibusters – except talking filibusters, because one person can always hold the floor as long as she can – on any of the President’s nominations for the Cabinet; federal agencies; and all federal courts except the highest court in the land. Those nominations will now be confirmed, or rejected, by majority vote. Three Democrats joined all the Republicans in opposing the rule change.

So the “headline summary” above is wrong – the Senate did not end the filibuster. Legislation still needs 60 votes to pass a cloture motion. Supreme Court nominations can still be filibustered – although a Supreme Court nomination has only been successfully filibustered once. But other nominations go forward, on an up or down vote.

The immediate cause for this move was the GOP’s unprecedented refusal to allow votes on President Obama’s nominees. From 1968 through 2008 – a time period covering eight presidencies – a total of 68 motions were filed to break filibusters. Since then, in the almost-five years Barack Obama has been in office, 81 nominations have been filibustered. Over the last month, the Democrats’ patience finally ran out.

Earlier this year, President Obama announced three nominees to fill vacant seats on the U.S. Court of Appeals for the District of Columbia Circuit: Patricia Millet, Robert Wilkins, and Cornelia “Nina” Pillard. No one disputes that all three are totally qualified to serve: Millet is a well-known lawyer who has argued 32 cases before the Supreme Court, Pillard is a professor at Georgetown Law (full disclosure: this blogger’s alma mater), and Wilkins is already a federal judge. But the Republicans blocked all three nominations, and were quite clear about why they did so. As Senate Minority Whip John Cornyn (R-TX) put it, the GOP’s position is that Obama shouldn’t get any appointments to that court at all. One of the few things the Constitution expressly lets the President do is appoint judges and officers, subject to Senate confirmation. If the Senate rejects them, they don’t take office. Obama’s nominees weren’t confirmed, but they weren’t rejected either. They were just filibustered. In short, the Republicans have not used the filibuster to prevent President Obama from some unprecedented power grab, but simply from doing precisely what the Constitution lets him do. And Harry Reid finally decided enough was enough.

Hypocrisy abounds. The Republicans almost did this in 2005, and Reid, who was Minority Leader – as well as then-Senators Barack Obama and Joe Biden – accused the GOP of trying to destroy the institution of the Senate. And Senator McConnell said, over and over again, that all he wanted was an up-or-down vote. The 2005 crisis was defused when the minority Democrats agreed to let in three judicial appointments by President George W. Bush, and the Republicans agreed not to take away the filibuster. Many expected something similar this time: Mitch McConnell would let one or two of the D.C. Circuit nominees go through, and the filibuster would remain untouched. But McConnell called Reid’s bluff: he bet that the Majority Leader wouldn’t use the so-called “nuclear option” even if none of the judges were confirmed. Yesterday, he lost.

Why it Matters

So basically, the Senate has used its power to make its own rules to more efficiently execute its role in confirming the President’s nominees. And that might bring you back to the question of why that’s a big deal.

The answer is the courts. The Constitution grants judges life tenure: they serve as long as they want unless impeached, which usually only happens when a judge is corrupt. The judges a President appoints stay in office long after he does, and they can help shape his legacy far more than any law might. And while most people understand the important of Supreme Court Justices, they don’t often realize the importance of the Courts of Appeals.

But the D.C. Circuit is probably the second-most important court in the country. It hears challenges to many administrative rules and policies made by federal agencies, and its opinions carry great weight. It’s also considered, for lack of a better term, as the Supreme Court’s AAA: four of the nine current Justices – Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, and Chief Justice John Roberts – came from the D.C. Circuit. Placing a young judge on the D.C. Circuit is often a clear signal that they’re being considered as a future Supreme Court nominee. Patricia Millet, Nina Pillard, and Robert Wilkins are each in their early 50’s: appointing them to the D.C. Circuit almost certainly means they’ll be there for at least two decades – or until they get promoted.

There are currently 93 vacancies on the federal courts, which amounts to just over 10% of the federal bench. Prior to yesterday, it was highly unlikely that President Obama could make a dent in those vacancies, because any nominee would need 60 votes to get through the Senate. But that is no longer the case, and a judge can be confirmed by majority vote. The D.C. Circuit will almost certainly get Judges Wilkins, Millet, and Pillard, and there’s nothing stopping the White House from filling the other vacancies as well. The federal judiciary is largely controlled by conservatives today, but Obama now has an opportunity to remake it. If he seizes that opportunity, the courts, not the Affordable Care Act, may be his most pronounced legacy.


There are many ways in which the Constitution requires the Senate to be antidemocratic. That was understandable, and more tolerable, in 1789 when the size ratio between the biggest and smallest states was about 10 to 1 instead of 65 to 1. But the 60-vote filibuster is not one of those constitutional requirements, and it has created a situation where Senators representing about 10% of the country could block legislative action. That’s not a safeguard against tyranny of the majority – that’s madness in a democratic society. Plenty of safeguards still exist in the Constitution’s structure, and the Bill of Rights. The filibuster had simply become another antidemocratic tool in what already might be the most antidemocratic institution in any constitutional democracy. We just got a little closer to “one person, one vote” – and we just got a little more American, too.

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