Republicans are warning that Democrats will regret their November 21 party-line vote to change rules of the U.S. Senate to permit confirmation of presidential appointees (except Supreme Court justices) by a simple majority instead of the 60% supermajority which had been required. No, they won’t, or at least shouldn’t.
Someday Republicans may control both the Presidency and the Senate, as the Democrats do now. And then Republicans could confirm appointees without regard to minority opinion. So what? If any party can elect a President and a majority in the U.S. Senate that party should be able to confirm presidential appointees, as the Constitution provides.
There’s no filibuster in the U.S. Constitution. In fact I’d suggest that the filibuster, requiring a 60% supermajority in the U.S. Senate is actually unconstitutional.
The U.S. Constitution does require a supermajority in the U.S. Senate for specific reasons like the ratification of treaties and amendments to the Constitution itself. But in all other cases including legislation and confirming presidential appointments, Article I provides that in the event of a tie vote in the U.S. Senate, the vice president of the United States should cast the deciding vote.
Why would the Constitution specify a tie-breaker if a supermajority of 60% or more was required to enact legislation or confirm appointments?
The custom of the filibuster, allowing unlimited debate as long as any member wishes to speak, reflected the courtesies of the 18th century, and was the practice in both houses of Congress at the time of the founding of the republic. But as the House of Representatives increased the number of its members, its rules were changed to limit debate and insure a vote despite minority opposition.
The U.S. Senate retained the custom of unlimited debate in its rules until 1917 when its rules were amended to cut-off debate by “cloture” upon a two-thirds vote. As recently as 1975, the U.S. Senate again changed its rules to reduce the number of votes required for cloture from two-thirds to three-fifths, or 60 out of the current 100 senators. And now the rules have been changed again to require only a simple majority for cloture to confirm appointments (except for Supreme Court justices), to insure a vote on appointees despite minority opposition.
Our Constitution provides for a system of checks and balances. Both houses of Congress and presidential approval are required to enact legislation into law. But only the U.S. Senate is required to confirm presidential appointees, suggesting that appointees should be expeditiously considered and voted upon without the delay of a separate vote in the other house of Congress. All actions of the Congress are subject to constitutional review by the federal courts.
Allowing the U.S. Senate to act by simple majority, except as otherwise specified in the Constitution, seems like the essence of constitutional democracy. The practice of simple majority rule in the U.S. Senate should be expanded to include enactment of legislation and the confirmation of Supreme Court justices.
Yes, it could result in appointment of judges you don’t like just because one party controls both the Senate and the White House. Yes, it could result in enactment of a law you oppose just because one party controls both houses of Congress and the White House.
But that’s what the Constitution provides, including judicial oversight of congressional and presidential acts. And at least that would end the continuing clown show in the U.S. Senate where a minority of senators can hold the majority hostage on legislation and appointments to the Supreme Court.
The unconstitutional filibuster and its resulting gridlock in the Senate makes us the laughing stock of other democracies with parliamentary governments, where national leaders can be held accountable for their actions without the political cover of being able to blame their minority opposition. The unconstitutional filibuster should be abolished entirely for all matters before the U.S. Senate.