Democrats Should Blame Themselves for the Hagel Filibuster

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.

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.

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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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