The Senate's Filibuster Moves Up On the 2022 Ballot
Arizona's enigmatic Democratic US Senator, Kyrsten Sinema, supports reinstating the filibuster for judicial and executive branch nominees. Is a party switch in the offing?
U.S. Senator Kyrsten Sinema (D-AZ) has probably won higher praise from Senate Republican Leader Mitch McConnell (R-KY) than any of his estimable first-term GOP colleagues.
This week, at his invitation, she spoke at the McConnell Center at the University of Louisville, in the GOP Leader’s home state, and at his alma mater.
The Wall Street Journal quotes McConnell: “I’ve only known Kyrsten for four years, but she is, in my view—and I’ve told her this—the most effective first-term senator I’ve seen in my time in the Senate,” said Mr. McConnell. “She is, today, what we have too few of in the Democratic Party: a genuine moderate, and a deal maker.”
“Get a room,” some might suggest. You can watch Sinema’s entire speech and question-and-answer period here, along with McConnell’s effusive introduction.
She certainly makes more news and garners more attention, in and out of the Senate, than the average freshman Senator. Her Kentucky speech this week drew nationwide attention. That is unusual, especially for the McConnell Institute, which few outside the Bluegrass State have heard of.
Sinema has elevated the Senate’s filibuster on the ballot on November 8th. In fairness, it was already there - every Democratic nominee running, incumbent or otherwise, campaigns on its demise. But Sinema, combined with the equally unpredictable Joe Manchin (D-WV), provides bipartisan cover for McConnell if, as Majority Leader, he wishes to turn the clock back on the filibuster to include the executive branch and all judicial nominees.
Before her speech, it was just about protecting (or eliminating it, if you’re a progressive lefty) what was left of the filibuster for regular legislation. Sinema has not only raised the bar but turned the tables (mixed metaphor apology).
That’s a big deal. Before I proceed, let’s make sure we know what the filibuster is and how its demise for judicial nominees has profoundly affected personnel, policy, and legal determinations, from confirmation battles to recent Supreme Court decisions.
The filibuster is rather simple: The Senate’s Rule XXII requires a three-fifths vote - 60 of the chamber’s 100 Senators present and voting - to end debate and set a time limit and other restrictions on a particular piece of legislation.
Contrary to erroneous and malicious partisan rhetoric, filibustering is not some racist “Jim Crow era” rule. It predates that. The “filibuster” evolved after 1806 when former Vice President Aaron Burr persuaded Senators to eradicate the “previous question” motion. That was a motion to end a debate with a simple majority (51 Senators today, or 50 plus the Vice President if she’s around to cast the tie-breaking vote). It took Senators about 35 years to discover in 1841 that they could “filibuster” (a Dutch word for “piracy”) legislation to prevent its passage. Curbs on the filibuster weren’t imposed until 1917, and current rules took effect in 1975. It was originally “designed,” if we can call it that, to protect the right of Senators to debate legislation fully. So much for that. It is used routinely by the “minority” to stop legislation they oppose. Both sides have utilized it increasingly frequently for the last three decades. Nobody’s hands are clean.
Efforts to eviscerate the filibuster have been tried - sometimes successfully - ever since. But restoring filibuster rules that have been trimmed or eliminated has never happened.
Thus Sinema’s proclamation this week. If the GOP nets at least one new seat in the election, McConnell will return to his former perch as Majority Leader. He will have the right to control the floor, bring legislation, and proffer motions. Since every Republican Senator opposed then-Majority Leader Harry Reid’s elimination of the filibuster for Executive branch and Judicial nominations (except Supreme Court nominations) in 2014 using the “nuclear option,” it is highly likely that all would be on board to reinstate the filibuster for the final two years of Joe Biden’s presidency. McConnell eliminated the filibuster for Supreme Court nominations in 2017, paving the way for the confirmation of Donald Trump’s first nominee, Neil Gorsuch, which Senate Democrats were filibustering.
The left will no doubt scream “hypocrisy!” if he were to change course, but he never supported eliminating the filibuster in the first place, for anything.
How the filibuster was scaled back is important to the story.
Under Senate rules, it takes a two-thirds vote (67 Senators if everyone is present and voting) to change a rule. But decades ago, clever parliamentary experts discovered that a rule could be changed with a motion to successfully “overturn the ruling of the chair,” a motion that takes just 51 votes, a simple majority. That practically eviscerates the Senate rule and returns “ending debate” to a simple majority for nominations. That’s called the “nuclear option.”
Reid used the nuclear option to stack the District of Columbia Court of Appeals with Barack Obama nominees. McConnell warned Reid and Democrats then, in 2014, that they would rue the day. Three years later, he checkmated Democrats by using it to “stack” the Supreme Court with three Trump nominees, resulting in our current 6-3 “conservative” court (with the Chief Justice swinging both ways, somewhat erratically). Roe v. Wade, anyone? Actions have consequences, even when they involve a process.
And McConnell, if he returns to his Majority Leader perch come January, can use the nuclear option again to return the filibuster for Executive branch and all Judicial nominations. As noted previously, that would be a historic first.
That would curb Biden’s ability to win confirmation of his more controversial judicial and executive branch nominations and stem his Administration’s impulses if another Supreme Court vacancy arises. And Biden has had his share of controversial, even extremist judicial nominations. Biden’s US Court of Appeals nominees have averaged over 41 votes against their confirmation. Had the filibuster still been in effect, many, if not most, of those nominees, would have been defeated.
The filibuster is a process, but its life or death has real consequences. The progressive left wants to terminate the filibuster to jam through its agenda, just as Donald Trump tried to pressure McConnell to end it to advance his.
If Trump had been successful, where would we be today? Thanks, Mitch.
And if McConnell and Sinema team up to restore the filibuster rule for Executive and Judicial branch nominations, it has implications for whoever wins the presidency in 2024. Future presidents must find enough “minority” votes to confirm their nominees. Controversial nominees will have a harder time getting through the process unless the majority party has 60 Senators. It’s happened before, and recently, during Obama’s first term when Democrats briefly enjoyed a 60-seat majority.
My long-time reader knows my views on the Senate’s filibuster rules and attempts to change them. I’ve written about it here, here, and here. It is the bedrock of the Senate’s organizational purpose. Eliminating it would have severe consequences and turn it into a smaller, older, and more ornate version of the US House. And worse.
Voters have a way of snapping back partisan excesses. It’s about to happen in a few weeks. Less than two years after Obama’s 60-seat Senate majority, Republicans, after the 2010 elections, grabbed control of the House and shrunk the Democrats’ Senate majority to 53 seats. Four years later, the GOP won outright Senate control. Voters responded to Trump’s election by giving Democrats control of the House in 2018.
That’s a lesson and a reminder of why the Senate was constructed the way it was by our founders some 233 years ago - the cooling saucer of democracy. Perhaps a return to “regular order” is overdue. Most voters reject extremes at either end of the spectrum, even when they’ve created a few huge pendulum swings. It is how democracy often works. When allowed to.
McConnell's memoir is aptly titled “The Long Game.” I highly recommend it. Even at age 80, he sees beyond 2022. Every Senate leader knows that the most important vote is “the next one” and jockeys accordingly.
In 2024, Sinema’s first term ends as she is expected to seek reelection to her Arizona Senate seat. Challengers from the left are already emerging, if not circling like sharks. She’s already been censured by her party for past actions. McConnell’s charm offense could invite Sinema to discover warmer and more amenable political waters in the Senate as a Republican.
Will Arizona Republicans go along? Only time will tell, but given the state of Arizona’s GOP today, there are plenty of sharks in those waters, too.