by Richard W. Painter, former Associate Counsel to the President and Chief White House ethics lawyer, 2005-2007. Painter is co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform.”
Word on Capitol Hill is that Senate Democrats are thinking seriously about changing the Senate's rules to make filibusters less likely. This is a welcome development because the filibuster -- a procedural mechanism for refusing to allow any vote to take place -- has no place in a body that prides itself on deliberation and decision. A decision not to decide, or to allow a minority of senators to prevent the others from deciding, is not deliberation. It is nothing more than obstruction, a way of saying that "if the majority won't vote my way I won't let them vote at all."
Less than a decade ago the tables were turned and Democrats used filibusters to block President George W. Bush's judicial nominees. Republicans considered amending the Senate's rules to eliminate or reduce the likelihood of filibusters, but in the end they chickened out. They were perhaps more interested in preserving their power to frustrate a future Democratic president than in supporting President Bush. Perhaps they believed that even senators of the president's own political party benefit from filibusters because they can ask the White House for something in return for trying to break the filibuster. For whatever reason Senate Republicans failed to do something about the problem and some of President Bush's most qualified judicial nominees were kept off the federal courts as a result. Other nominees had to wait around for months before they were finally confirmed.
This situation is even worse under President Obama now that Senate Republicans who once said they despised the filibuster have shown that they actually enjoy it. Thus far, Senate Democrats have followed the precedent of whining about the filibuster but not doing anything about it, perhaps fearing that they may once again be in the minority with a Republican in the White House.
Now, however, things may be different. Senate Democrats are waking up to the fact that voters are tired of the obstruction and partisan bickering in Washington. Voters are also tired of politicians who complain about a problem but don't do anything about it. The filibuster is a problem that is relatively easy to solve; the senators know it and so do the voters. And there appears to be a growing consensus that now is the time. Senate Republicans -- unless they believe that they will perpetually be in the minority -- have every reason to join Democrats in supporting filibuster reform. And with public sentiment being where it is today, senators of either party who support filibusters are likely to find themselves to be in the minority for a long time, or perhaps out of the Senate altogether.
I wish we had pushed harder for filibuster reform when I was in the White House Counsel's Office under President Bush. I am glad to see that the White House is now willing to push hard on this issue and that many, perhaps most, senators will agree with the presidents of both political parties who have demanded that this shameful practice come to an end.
[image by Tobias Higbie]