Democrats Should Blame Themselves for the Hagel Filibuster

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The Framers didn't mean to let minority parties hijack the Senate. But when the Democrats had a chance to reform the voting rules last month, they threw it away.

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Larry Downing/Reuters

I'm not sure the Senate was ever not broken, but today it's lying in shards all over the rug. The worst of its flaws is the filibuster -- an institution not foreseen or prescribed by the Constitution; one that evolved by accident; and one that has now been adopted by a small political elite that, in essence, would prefer to wreck our government rather than let it operate as planned.

Consider the news Friday: The minority in the Senate has chosen to block the nomination of a secretary of defense in time of war. They have done so even though he is both a former senator and a member of their own party. (A few of them insist that it's not a "filibuster," just a demand that the majority muster 60 votes to bring the nomination to a vote -- a maneuver technically known as, well, a filibuster.)

There will not be another vote on Hagel for 10 days, apparently. In that time, as the super-PAC ads against Hagel flood home-state airwaves, Senate Democrats will think ruefully about their lost opportunity to make a difference in the Senate rules. Faced with the possibility of a serious fix to our broken system, they took the path of least resistance. The chance may not come again for many years.

The Hagel fiasco shows how anemic the "reform" Majority Leader Harry Reid negotiated last month is. When I last wrote about this issue, several knowledgeable readers took me to task. I wrote that there is "no change ... in the minority's power to stall judicial nominations." The new rules, my readers said, do change procedures for judicial nominations. They're right. Here's the difference: Before the rule change, 60 votes were needed to approve any judicial nomination if a senator or group of senators choose to try to block it. After the rule change, 60 votes are needed. Some reform.

The new rules do provide this small change: If the nomination is for a federal district judgeship, the Senate may only debate two more hours after the majority leader has pulled 60 votes out of his hat. And the two hours of debate must be real debate involving human beings on the floor. What this means, veteran Congress-watcher Norman Ornstein said in an email, is that "a full partisan filibuster against a district judge will block confirmation, but if you have a bunch of individual holds, the leader now can bring the nominations up almost en bloc and get them through without the scores of hours of delay otherwise."

Last month, given a chance to make our constitutional system work better, Reid and his cohort shied away.

If, however, the nomination is for a Court of Appeals or Supreme Court post -- if, in other words, it's a nomination that truly matters to the political balance of the federal bench -- there is no change. Even after "cloture," the Senate must allow 30 full hours of debate on the nomination if the minority wants to use it.

As Clarence Thomas once wrote in a different context, "Well, whoop-de-damn-do."

Defenders of the rule changes insist that the district-court changes will "free up" time on the Senate calendar and make it easier for the majority to bring controversial appellate nominations to a vote. I will believe it when I see it.

Look ahead to a possible opening on the Supreme Court (especially if it is created by the departure of one of the conservative majority). Do you doubt that that any nominee will be proclaimed "controversial" and held up by any means necessary? (Solomon the Wise, for example, once spoke in favor of baby-chopping. He is out of the mainstream!) Republicans will also, I predict, try to stonewall any nominee for the D.C. Circuit, the most important regulatory court in the country.

In terms of judicial nominations -- and the ongoing emergency caused by the failure to confirm nominees over the past decade -- the big Senate deal earned us practically nothing.

Some defenders of the filibuster like to claim that it is an expression of the Constitution's solicitude for the rights of the minority. Pure majority rule may lead to tyranny. "True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority," James Madison once wrote.

But Madison feared misrule by a minority as much as by a majority. He simply believed that there would be voting to break minority factions. In Federalist 10, he wrote that "[i]f a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote." A minority faction, he imagined, "may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution."

"Regular vote" is precisely what the current system prevents; the Senate minority seeks to "execute and mask its violence under the forms of the Constituion." That is true even though executive nominations cannot, in Madisonian terms, "trespass on the rights of the minority." It's hard to imagine that Madison, or any practical political thinker, would find much merit in a system where a minority could get its way by preventing any vote at all. "Advise and consent" does not mean "paralyze and prevent."

Both sides bear some responsibility for the persistence and expansion of this hateful procedure. Senate figures show that in the 110th Congress, with majority Democrats seeking to block measures by President George W. Bush, filibusters led to 139 "cloture" motions filed and 112 formal cloture votes. In the 111th Congress, with minority Republicans seeking to block Obama proposals and nominees, there were 137 and 91, respectively. In the 112th, the numbers fell slightly, to 115 and 73. The numbers do not tell the whole story, because one senator can prevent a legislative measure from even being debated until 60 votes are mustered, and many bills die without a vote of any kind. As Judge Emmet Sullivan noticed when he dismissed a lawsuit against the filibuster late last year, the Senate between 2009 and 2011 failed to vote on a full 400 bills that had been passed by the House.

Last month, given a chance to make our constitutional system work better, Reid and his cohort shied away. Republicans warned that making change by majority vote would be "poisoning the well on the very first day." One is tempted to ask what a more poisonous Senate would look like.

News reports suggest that senior Democrats rejected more fundamental reform because they foresee a time when they may be in the minority again. There is something humiliating in the spectacle of a politician who will not embrace victory because he or she is already planning for defeat.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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