Robert F. Jakubowicz: Loss of filibuster widened nation's split


PITTSFIELD — America could have been spared from the further widening of its political division, if former Democratic Senate Majority Leader Harry Reid and current Republican Senate Majority Leader Mitch McConnell had not taken action that led to the elimination of the senate filibuster regarding federal judicial appointments. This parliamentary rule would have enabled the Democratic minority to prevent a Senate vote to confirm the appointment of controversial Judge Brett Kavanaugh to the Supreme Court.


Under the filibuster rule, it would have taken 60 senate votes to stop a filibuster preventing a vote to confirm Kavanaugh's appointment, a number not likely to be attained by the Republicans with their razor-thin majority. The use of this last-resort parliamentary defense by the Senate minority would have effectively checked and balanced action by President Donald Trump and the GOP Senate majority from plowing through with Kavanaugh's confirmation.

The 60 votes needed to stop a filibuster is a number that has proven difficult to attain. With the filibuster in place, the Senate confirmation of Kavanaugh would

have required a consensus by the senators from both sides to deal with this matter. But without a filibuster, an unchecked simple majority of Republicans fast-tracked his judicial nomination.

The elimination of the senate filibuster is a very serious matter. According to historians, both senators and representatives in the early days could filibuster,but as the number of representatives grew, their rules began changing to limit debate. Meanwhile, the Senate continued to allow unlimited debate on the principle that any senator should be allowed to speak as long as necessary. But eventually the Senate put some limitations on its policy of free debate. In 1917, the Senate adopted Rule 22 which cut off debate by a two-thirds majority vote (67). In 1975, that number was reduced to its current three-fifths or 60 votes. Despite these limitations, Senate minorities made use of the filibuster to compel real negotiations leading to compromises and the check and balance system of the nation's government was working.

The Senate took pride in calling itself the greatest deliberative government body in the world. But it now it is on its way to becoming like the House of Representatives. That congressional branch of government is now completely controlled by its majority of party members. The minority is neither consulted on legislative business nor has any power to deal with legislative business.

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What happened to the Senate filibuster? Senate leaders from both parties were involved in its legislative demise. During former President Obama's administration, members of both political parties blamed each other for a gross misuse of the filibuster to hamper, stall and stop legislative measures from both sides. In 2013, Reid became greatly upset over the Republican filibusters to stop Obama's picks for federal judgeships, especially to the Court of Appeals for the District of Columbia. He decided to use the so-called legislative last resort of the "nuclear option" to allow federal judges, except for the Supreme Court, to be confirmed by a simple senate majority vote. He used a parliamentary ploy to circumvent senate Rule 22 by raising a point of order on the Senate floor to challenge that rule, asserting that only a Senate majority vote of 51 was necessary to confirm a judicial nominee, excepting the Supreme Court, and in effect the 60-vote rule to stop a filibuster did not apply. He was supported by the Democrats with their then simple majority and presto, filibusters no longer applied to these appointments.


This action by Reid and his party majority began the senate's slide down the slippery slope of eliminating the filibuster for all judicial and certain executive office appointments. Are all other legislative matters now in jeopardy of suffering the same legislative fate of not being subject to a filibuster defense? Senate Minority Leader Mitch McConnell, at the time, said: "This Pandora's box, once opened, will be utilized again by future majorities (to) make meaningful consensus building a relic of the past." And then he later rather quickly took that step in 2017 to prevent a Democratic filibuster to block President Trump's appointment of Judge Neil M. Gorsuch to a seat on the Supreme Court.

McConnell used the "nuclear option" to in eliminate the exception of the filibuster for appointments to the Supreme Court. Because of the now super power of this court to have the last word on what the laws of this nation mean, its nine, unelected members not only should be legal scholars, but non-partisan, even-tempered, not prone to conspiracy theories such as being opposed by political enemies seeking revenge upon the Clintons, liberals, and Democrats, civility, and not a wisp of a cloud of sexual abuse and lying. Judge Kavanaugh clearly exhibited a very obvious lack of these personal qualities at the Senate hearing

that should have disqualified him from being confirmed. The driving force behind this judicial nomination was Trump's base of supporters. He has made it clear that he would appoint judges who would reflect his and their views on social issues, business, guns, women's rights, religious issues and the like.

Fearing a voter backlash by this base, the GOP senate majority went along. After the Senate vote, Trump tweeted that Kavanaugh "showed America why I nominated him."

Indeed! He showed it at the Senate hearing to widen the nation's political division.

Robert "Frank" Jakubowicz is a regular Eagle contributor.


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