Good Riddance to the Filibuster

If the Democrats use the filibuster to protest Neil Gorsuch’s nomination, it might be the only constructive purpose the practice has ever served.

J. Scott Applewhite / AP

Where were you on June 10, 1964?

What were you doing, what were you thinking, what were you talking about?

You may not have been born; you may have been very young. I remember June 10, 1964, clearly. I was 14, a Southern white boy teetering on the edge of adolescence, thinking ahead to high school and girls—and dimly realizing that the world as I knew it was about to change forever.

On June 10, 1964, 71 U.S. Senators voted to end debate on the proposed Civil Rights Act of 1964. The CRA is the law that ended Southern apartheid, revolutionizing life in my segregated backwater region. It was also the first civil-rights measure in history to pass after a Senate vote on “cloture”—a two-thirds vote to end debate—ended a Southern filibuster.

By the end of this week, Senate Majority Leader Mitch McConnell will almost certainly invoke the “nuclear option” and force a vote to abolish the privilege of “unlimited debate”—in less highfalutin words, the filibuster—on presidential Supreme Court nominations. This will allow a majority vote to confirm Judge Neil Gorsuch to the seat vacated by the death of Antonin Scalia.

If I were a senator, I would vote no on Gorsuch. I was on the fence until I saw his show of contempt for the Senate Judiciary Committee and the public during his confirmation hearings. I also think his seat was, as critics say, stolen from a sitting president, Barack Obama, in defiance of constitutional norms and simple good citizenship. I am glad that the Democrats have united to register their fierce opposition to the way the Republican Party has annexed the Court to its nakedly partisan politics.

Is a Gorsuch filibuster wise tactically? I don’t know, but George Orwell once said, “I believe that it is better even from the point of view of survival to fight and be conquered than to surrender without fighting.”

The possible demise of the Supreme Court filibuster, however, is being greeted by wise Washington commentators as if some deep norm of democracy is being lightly cast aside.

It’s not. If the Democrats use the filibuster to protest the nomination, that may very well be the only constructive purpose this wretched practice has ever served.  If Mitch McConnell drives another nail into the filibuster’s coffin, history may record that act as one of the man’s few positive achievements.

To be clear, the “nuclear” destruction of the Gorsuch filibuster, if it happens, will not put an end to filibusters in general. All the shouting over the past few years has been over the increasingly frequent practice of filibustering presidential nominations, both to federal judgeships and to other executive posts. In 2013, after Republicans blocked all of Obama’s appointees to the Court of Appeals for the D.C. Circuit, Senate Democrats used the rules to end the filibuster of executive and lower-court nominations. This week’s dispute will simply extend that new rule to bar filibusters of Supreme Court nominees as well.

The practice under Senate rules of filibustering actual legislation will, for the time persist. It deserves an ignominious death as well.

That takes me back to 1964: All through April and May, a group of 18 Southern senators held forth in Dixie-gothic glory on the Senate floor, shaking their silver locks as they forecast the horrors awaiting American civilization if federal law required “race-mixing.” Senator Richard Russell of Georgia, the leader of the filibuster, proclaimed proudly, “We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states.”

All through the two agonizing months of “debate,” President Lyndon B. Johnson and the Republican and Democratic leadership in the Senate scurried to assemble the 67 votes needed to bring the act to a vote. On June 10, the stars were in alignment; but just barely. As late as the morning of the vote, the result was in doubt. Senator Clare Engle, terminally ill with a brain tumor, was transported to the Capitol by ambulance and rolled onto the Senate floor in a wheelchair. The University of Texas neurosurgeon Colin Son recounts what followed: When the Senate clerk called his name, Engle was unable to speak. Instead, he pointed to his eye. His vote was recorded as “Aye.”

Engle died a month later.

In the end, the Civil Rights Act passed by 71 votes. It was, as Son notes, the first civil-rights bill ever to pass after defeating a filibuster—and only the second defeat for the filibuster since 1927.

The filibuster has no roots in the Constitution (which merely empowers each House of Congress to set its own rules) or in the thought of the framers. It grew up by accident. As political scientist Sarah Binder of George Washington University has written, the early Senate, like most deliberative bodies, allowed a motion called “previous question,” which allowed a majority to shut off debate and proceed to vote on a pending measure. The filibuster was an accidental creation of Vice President Aaron Burr, he of the great ideas. (“Hey, how about I throw the 1800 election into chaos? How about I kill Alexander Hamilton? How about I become emperor of the American Southwest? Are you with me?”) In 1805, Burr supervised a revision of the rulebook and apparently suggested that a body as small and collegial as the Senate—it had only 34 members at the time—didn’t need a rule to end debate.

After the rule was dropped, debate had to proceed as long as any Senator wanted to speak. But no one used the rule as a weapon until three decades later. After the Civil War, conservative Democrats used it repeatedly to block measures protecting civil and voting rights of black Americans. In the early 20th Century, a small group filibustered a measure that would have allowed President Woodrow Wilson to arm American merchant ships against German raiders. Wilson and his backers were outraged, and demanded a rule allowing “cloture.”

In 1938, Southern senators blocked a federal bill to protect black Southerners from lynching. In 1946, a filibuster blocked a plan to establish a federal Fair Employment Practices Commission. In 1957, Majority Leader Lyndon Johnson allowed Southern members to severely water down a proposed civil-rights bill in exchange for a promise not to filibuster it. Even so, Senator Strom Thurmond of South Carolina occupied the floor by himself for more than 24 hours in a symbolic filibuster. In 1968, Republicans and conservative Democrats senator for the first time filibustered a Supreme Court nomination, blocking Johnson’s appointment of Abe Fortas as Chief Justice.

In 1975, a Democratic Senate majority cut the number of votes needed for cloture to 60. In the 21st Century, the merry-go-round of hypocrisy has been nearly nauseating. When they controlled the Senate under George W. Bush, Republicans found Democratic filibusters of nominees unconstitutional; when Democrats took control of the White House and Senate, Republicans rediscovered its deep wisdom and the Democrats found their capacity for outrage. Huge chunks of President Barack Obama’s legislative agenda were slowed or blocked by the filibuster, to the nation’s great disadvantage. Now, under Trump, the Republicans passionately hate the filibuster of nominations, and the Democrats revere it.

I say to hell with it, and I mean that quite literally.

In democratic terms, the Senate itself is enough of an outrage, with its grotesque two-senators-per-state rule that puts Wyoming and California on an “equal” footing. The filibuster adds a mechanism by which 41 senators—who might, in fact, represent as little as one-sixth of the American population—can block legislation favored by the vast majority. It verges on the obscene.

The current Senate majority is one I fear, and I dread the fulfillment of its legislative plans. The Democrats will use the filibuster to slow the parade of hideous Koch-inspired bills that will pour into the Senate from the House. I don’t want those bills passed. But if the filibuster disappeared tomorrow, I would not mourn, because I hate the filibuster more than I fear McConnell. The filibuster was always a conservative tool; progressives eventually would find reasons to celebrate its demise.

I remember as if it were yesterday those spring months when 18 old white racists in white suits stood in the doorway through which the South, white and black, needed to pass to attain full membership in the American family. Over and over they proclaimed, in the immortal words of George Wallace, “Segregation now, segregation tomorrow, segregation forever!”

Then we, the people, shut their mouths. It was a great day.

If you support the filibuster, then bless your heart.

But I remember 1964.