inessential by Brent Simmons

The Senate and Political Minorities

The Senate changed its rules today to prevent filibusters on judicial and executive nominees (except for the Supreme Court).

One possible criticism of this change, no matter what your party, is that the filibuster protects the rights of the minority: it helps prevent the tyranny of the majority.

(That tyranny is a risk in any democracy, because the majority may be and often is very, very wrong. There’s an old saying that the First Amendment, were it brought up for a popular vote, would not pass, and I believe it.)

Here’s the thing about the Senate: its construction protects the rights of the minority. No Senate rules can alter that.

The Senate gives two votes to each state. Alaska’s tiny population of 731,449 (2012) has the same number of votes as California’s 50-times-larger population of 38.04 million.

Delaware and Rhode Island can out-vote Texas. Kentucky and Tennessee can out-vote New York.

While the House of Representatives is meant to be proportional (and isn’t, really, but that’s a different topic), the Senate is designed to represent the individual states, to make sure that the interests of small states are as well-considered as the interests of larger states.

Note that the Senate is not designed to protect the interests of the minority political party. (The Constitution makes no mention of political parties.) Instead, it’s designed to protect the states that are outnumbered in the House of Representatives.

For any legislation to finally become a law, it has to pass both the proportional, democratic House and the state-representative Senate — and then, finally, get signed by the President. That’s a pretty high bar, which is as it should be. (To suggest that legislation should reach an even higher bar — a filibuster-proof three-fifths of the Senate, for example — is, I think, anti-democratic.)

Judicial and executive nominations are not like bills. The Constitution says this in Article II, Section 2, paragraph 2:

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Treaties require two-thirds of present Senators to agree, while nominees require just the “Advice and Consent” of the Senate. We take that “consent” to mean a majority vote. (It’s conceivable that we take “consent” to mean something else, but a majority vote is a reasonable and time-tested means.)

It is notable that this is asked of the Senate and not the House. It’s very possible for a nominee with broad popular support to fail to reach 51 votes in the Senate. It’s also very possible for a nominee who’s broadly considered as unqualified to succeed at reaching 51 votes in the Senate.

In both cases the system is working properly — that is, the interests of large and small states are considered equally, rather than allowing Illinois to trample on Wyoming, or Georgia to step on Vermont.

Constitutionally this is the important thing. Not important to the Constitution — not even mentioned — is the rights of the minority political party.

Knowing this, I’m unconcerned about the rules change. I think it’s good. Getting 51 Senators to agree is a high enough bar as it is: it means a majority of states (of any size), not people, have agreed. (The filibuster meant that at least 60 Senators had to agree.)

(Will my party be in the minority some day? I would hope so, since it’s good for the Republic for chambers to switch hands from time to time. And I may not like what the other party does. But I will like that the system is working as designed, which is not true at the moment.)

Should the filibuster remain a possibility for Supreme Court nominees? More important nominations may need to reach a higher bar: maybe a filibuster-proof 60 votes makes sense for the Supreme Court. I’m not sure what I think. But, at least for now, it’s still in place, and I’m good with that.

I would, however, get rid of the filibuster for all other legislation.