In The Arena Nuke 'Em, Harry: Why Democrats Should Kill the Filibuster

William Yeomans worked as an attorney and senior official in the Justice Department’s Civil Rights Division for 24 years. He is now a fellow in law and government at American University’s Washington College of Law.

Democrats, it’s time to bid farewell to the filibuster as we’ve known it. Your restraint has gone beyond admirable to foolish. The institution for which you have shown extraordinary respect over the past four years, as Republicans flouted its best traditions, is no more. Republicans have overplayed their hand by disregarding prior agreements and turning the Senate into a graveyard—or at least a critical care unit—for obviously qualified presidential nominees. Republican obstruction has left you with nothing to lose by bringing the Senate fully into the 21st century and allowing the majority to rule. It’s time to change the rules.

In the hands of a Republican minority intent on frustrating President Barack Obama’s agenda, the filibuster has grown from a sparingly invoked procedural brake into a tool of open obstruction that Republicans use to slow or stop every judicial or executive branch nominee.


Democrats, you used to be the culprits. Back in the bad old days, before party realignment made your party the champions of civil rights, southern Democratic senators turned to the filibuster to block civil rights legislation. And you threatened to filibuster a handful of George W. Bush’s judicial nominees, most of whom were eventually confirmed.

But it was the Republicans who pushed the Senate into a new era by routinely requiring that Democrats muster 60 votes to confirm Obama’s nominees. As a result, his administration remains riddled with vacancies, and only 76 percent of the president’s judicial nominees have been confirmed, compared with more than 90 percent for Bush at the same point in his second term.

Even that 76 percent sounds awfully good in view of recent events. Republicans have now vowed to block all confirmations to the D.C. Circuit Court, which has three vacancies among its 11 authorized judgeships. They argue that the court doesn’t need any more judges, even though the workload is roughly the same as when they enthusiastically put Supreme Court Chief Justice John Roberts on that court. In reality, Republicans don’t want the president to tip the current 4-4 balance of the court in favor of democratic appointees. They recognize—as should you—that the court plays a crucial role in assessing the legality of federal agency actions. That role is particularly central now that Republicans are blocking the president’s legislative agenda, leaving the executive branch as the principal means for implementing policies supported by Democrats. You cannot permit a disingenuous minority to have its way in this fight.

Worried about blowback? Don’t be. Sen. Chuck Grassley (R-Iowa) helped expose the Republicans’ loss of leverage when he threatened that if the Democrats changed the filibuster rule, Republicans would appoint more justices like Antonin Scalia and Clarence Thomas to the Supreme Court. Whoa! Is he suggesting that Republicans won’t appoint more radically conservative justices if Democrats keep the filibuster? That might be a deal worth taking, but it wouldn’t be worth the paper it was printed on. If Republicans regain control of the White House, any Supreme Court nominees will very much be in the model of Scalia and Thomas, and their colleagues Roberts and Samuel Alito—if not worse. That means they will disregard any pretense of judicial restraint to eviscerate civil rights laws, restrain congressional authority to enact social legislation, support states over the federal government and big business over labor, oppose the interests of consumers and make sure the executioner stays in business.

In reality, Republicans have nothing left with which to threaten you. Just stop and think about how unimportant the filibuster has been to you. You chose not to use it to stop Thomas and Alito, even though more than enough Democrats to support a filibuster voted against each. You embraced Scalia (by unanimous vote!) and Roberts. When Republican presidents went too far, you mustered the majority vote necessary to stop them without resorting to the filibuster. That’s why we didn’t have a Justice Bork, Carswell or Haynsworth, or a Secretary of Defense Tower, or an Associate Attorney General Reynolds. Sure, Miguel Estrada would be on the D.C. Circuit, but that hardly justifies tying your own hands in perpetuity.

To carry through on their threats of retaliation, Republicans have to win both the White House and a majority in the Senate. You have the White House until at least 2016, and the destiny of demography favors you far into the future. Sure, you could blow it, but it’s yours to lose. You have a Senate majority. Keep it.

Moreover, you delude yourselves if you think that Republicans will show restraint in the face of Democratic filibusters. Our politics have changed. By stretching the use of the filibuster to the limit, Republicans have signaled that the gloves are off. It’s hard to imagine that keeping rules they can change with a majority will inspire them to put the gloves back on.

But the prospect that you might lose your majority in the Senate is all the more reason to fix the rules. You are guaranteed a year to move nominations. There are currently 53 judicial nominees pending in the Senate. In the next year, you could confirm all of them and more. And the president could send up some truly progressive, qualified nominees, who, absent the 60-vote requirement, would not be consigned to the fate of Goodwin Liu, the brilliant and progressive candidate for the Ninth Circuit Court of Appeals whose nomination Obama withdrew in 2011 after a Republican filibuster. The coming year could reshape the judiciary.

And consider the collateral delights. Imagine, for example, the flustered face of Sen. Lindsay Graham (R-S.C.) when he realizes that he can no longer credibly threaten to filibuster Federal Reserve chair nominee Janet Yellen because he’s unhappy about Benghazi. Nominees will move, and individual senators will no longer have the power of the veto.

Democrats, the time has come. Put the vice president in the chair, if necessary, and fix the Senate.

William Yeomans served as chief counsel on the Senate Judiciary Committee for Sen. Ted Kennedy (D-Mass.) and as a Justice Department official. He is a law professor at American University.