Earlier this month, Democratic senator Amy Klobuchar expressed a common view among old-line Senate nostalgists: Democrats made a mistake in 2013 by allowing judges to be confirmed by a majority vote. “I would’ve liked to see 60 votes, no matter what the judge is,” she confessed on Meet the Press. “I don’t think we should’ve made that change, when we look back at it.” Klobuchar added that she would “prefer to” bring the judicial filibuster back if Democrats regain the chamber, but doubted it would happen.
Yesterday, also on Meet the Press, Chuck Todd asked Democrat Dick Durbin if he would bring back the judicial filibuster if his party wins the chamber. Durbin smiled, gave a small nod, and said:
“It’s interesting, a Republican senator this morning in the gym raised the same question with me. And I said, ‘I think we’re learning our lesson here.’ That eliminating the filibuster on the Supreme Court at least, and maybe the other federal positions, has really created a much more political process. It is better for us to move toward something that is bipartisan and try to find more moderate people to serve on our federal judiciary.”
It is impossible to convey how insanely suicidal and ahistorical this statement is without conveying the steps that brought the Senate to this point. The filibuster is an anti-democratic mechanism that, counter to popular lore, was never written into the Constitution but evolved by accident, and changed many times. Supermajority requirements are rarely implemented on purpose, and are generally the mark of a poorly constructed system. It is not a democratic norm, it’s an anti-democratic norm. Some of us argued even when Democrats were in the minority under George W. Bush that the filibuster should not exist at all.
The notion of eliminating the filibuster for judges first arose in 2005, when Senate Democrats filibustered a handful of Bush administration judges they considered extreme. Republicans threatened to abolish the judicial filibuster, and a bipartisan “gang” of senators agreed on a solution that would keep the filibuster in place, but only if Senate Democrats agreed not to use it except in extraordinary circumstances (which never arose).
In 2013, Senate Republicans imposed a total blockade on several federal judicial vacancies and Cabinet appointments. They did not object to the qualifications or ideology of specific candidates, the traditional sources of dispute on these matters. They denied the president’s right to appoint anybody at all to the posts. In response, Democrats eliminated the filibuster for Judicial and Executive branch appointments, leaving it in place for the Supreme Court.
Last year, Republicans eliminated it for the Supreme Court. Durbin and Klobuchar’s case for Democratic regret is that, had they not made the change in 2013, Republicans would somehow have kept the judicial filibuster in place. There is no reason at all to believe this. The Republican party’s stance in 2005 makes it perfectly clear they would not tolerate the Democratic minority using the filibuster to exert any serious influence at all over judicial appointments. That’s why they forced Democrats to agree essentially never to filibuster a judicial nominee.
If they had not made the change in 2013, Republicans would have blocked scores of Obama judicial appointments, leaving even more vacancies to be filled by Trump. Trump’s imprint on the judiciary is already vast. The fact that they eliminated the judicial filibuster in 2013 is the only reason Trump’s number of appointments is merely huge as opposed to mind-bogglingly vast.
What’s even more astonishing is that some Senate Democrats are so filled with remorse from their successful exercise in defensive power that they are willing to at least entertain the notion of bringing the filibuster back if they regain the majority. So, suppose Democrats win control of the Senate in 2018 or 2020, and the presidency in 2020. Klobuchar and Durbin would propose to give Republicans the ability to impose another judicial blockade, so that the next Democratic president gets to appoint a tiny number of judges, and keep as many positions as possible vacant for the next Republican president to fill.
Of course, that isn’t going to actually happen, because there aren’t going to be 50 Democratic senators insanely suicidal enough to bring back the filibuster. It does indicate, however, the full pathological depth of institutional nostalgia in the Senate, and that the upper chamber is filled with Democrats who lack an appreciation for either the big-D Democratic Party or small-d democracy.
