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 progressives—including 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.