How Did the Senate Become Washington's Bright Spot?

The nuclear option is good news from a body that doesn't produce much of it.
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Senate Democratic Leaders Harry Reid, Chuck Schumer, and Dick Durbin speak to reporters after a vote to end the filibuster on some executive nominations. (J. Scott Applewhite/Associated Press)

The Senate vote Thursday to end filibusters on executive nominations is a curious redemption for a body that is among the Framers’ worst creations. For most of our history, the Senate has been where the popular will goes to die. It's a sign of how desperate things have become that it is now emerging as a place where Washington “works.”

The vote on Thursday, viewed with any detachment, was not a “nuclear” option—not even a chemical or biological one. It was simply a body acting pursuant to its authority under Article I § 5 cl. 2 of the Constitution to “determine the rules of its proceedings.” Working legislatures make rules changes often; the proper question is whether the rule change is workable and fair. The new rule permits a majority of senators voting to approve executive nominations—a specific responsibility assigned to the Senate in Article II § 2. It’s hardly a radical idea, it’s one that at different times may benefit different parties, and it’s one that is fully in tune with the Constitution.

The Constitution is reticent about congressional voting rules. Article I requires that a quorum—a majority of members—be present to do business. In the Senate, a two-thirds vote of those present is required to approve a treaty or overturn a presidential veto. Beyond that, the Framers said nothing about the rules of debate. The filibuster as we know it is not part of the constitutional design—indeed, it is not really part of anyone’s design. Before the Senate vote Thursday, the Washington Post’s Paul Kane wrote that allowing a majority to vote to confirm executive nominees and lower-court judges would would alter nearly 225 years of precedent.” There’s nothing to that; at its inception, the Senate had a “previous question” rule just like every other legislative body in the world. Thomas Jefferson’s Manual of Parliamentary Practice for the Use of the Senate of the United States (which was never formally adopted by the Senate) contained “previous question” as part of the Senate’s contemporaneous procedure.

That rule was eliminated in rather casual fashion at the suggestion of the deep-thinking duelist, Vice President Aaron Burr. There is no evidence that Burr made the suggestion because it was desirable to have minorities paralyze the body. Sarah Binder of George Washington University laid out the history in testimony to a Senate committee a few years ago: 

We have many received wisdoms about the filibuster. However, most of them are not true. The most persistent myth is that the filibuster was part of the founding fathers’ constitutional vision for the Senate: It is said that the upper chamber was designed to be a slow-moving, deliberative body that cherished minority rights. In this version of history, the filibuster was a critical part of the framers’ Senate. However, when we dig into the history of Congress, it seems that the filibuster was created by mistake .... Deletion of the [“previous question”] rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate. It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837.

Even then, a filibuster was rare in general, and there’s no historical evidence of any filibuster of an executive nomination until well into the 20th century. Beyond that, the contemporary “filibuster”—in which either debate or a final vote can be prevented by one senator filing a piece of paper on the way to lunch at the Monocle—is a creation of the 1990s.

When Democrats used the filibuster against George W. Bush’s nominees, the official conservative line was that filibusters of nominations were unconstitutional. When the White House and the Senate changed hands, Republicans overcame those constitutional scruples. After Barack Obama became president, some progressivesincluding lawyers for Common Cause—urged the courts to block the filibuster. As I wrote a few years ago, both sides were wrong. The filibuster, like a lot of stupid ideas, is perfectly constitutional. And if, a few years hence, a different administration and a different Senate majority use the majority vote to confirm different presidential appointees, that will be fine with me. 

By any sane democratic theory, the entire Senate is indefensible: Giving the voters of Wyoming equal weight with the voters of California is not just undemocratic, it is grotesque. The House, of course, is thus formally more democratic, being apportioned by population. But the advent of computers has ushered in an era of hyperpartisan gerrymandering, and many members of the “democratic” House are now completely protected against unwelcome public opinion. Senators, however, must represent entire states, and not all states are reliably red or blue. States where the two parties are competitive statewide may elect moderates of both parties, eager not to be known as green-eggs-and-ham partisans.

That path to moderation is slowly narrowing, of course. But for now, the Senate has distinguished itself by taking a step that is genuinely neutral, in tune with history and the Constitution, and good for both parties and 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, and is the author of American Epic: Reading the U.S. Constitution.

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