When the Senate begins its vote on PresidentTrump’s nomination of Judge Amy Coney Barrett to become the 115th Justice of the Supreme Court, spare a thought for the drama’s wiliest, most conniving, most self-satisfied, trickiest player — History. That infuriating imp could well be looking down from the rafters, while clutching a dog-eared clipping of the editorial of theTimes called “Democracy Returns to the Senate.”
That now-famous editorial was issued in November 2013 to celebrate packing of the District of Columbia Circuit. To enable that, the Democratic majority in the world’s greatest deliberative body to did away with the filibuster in cases involving judges. “That means,” trilled the Times, “a return to the democratic process of giving nominees an up-or-down vote, allowing them to be either confirmed or rejected by a simple majority.”
“The only exceptions are nominations to the Supreme Court, for which a filibuster would still be allowed,” it said. “But now that the Senate has begun to tear down undemocratic procedures, the precedent set on Thursday will increase the pressure to end those filibusters, too. This vote was long overdue.” The Gray Lady then quoted the liberal lion Tom Harkin as saying, “I have waited 18 years for this moment.”
History was probably sneaking around the chamber then, too. Maybe reading a tattered copy of a little book called “What Goes Down, Comes Around.” In any event, let us not get too blasé about all, or any, of this. Cloture was voted yesterday with fewer than 60 votes. It’s a serious moment, particularly because the Democrats are fixing, should they regain the majority of the Senate, to end the filibuster altogether.
Who’s going to stop them? The filibuster is not part of the Supreme Law of the Land. It’s not in any law of the land. It, or what’s left of it, is a Senate rule. The Constitution ordains that “Each House may determine the Rules of its Proceedings.” So the solons have a free hand in deciding whether to maintain any or all of the filibuster, which, a Senate Website notes, stems from the Dutch word for “pirate” and goes back to the 19th century.
We don’t mind saying that we maintain a certain wariness in respect of doing away with the filibuster, a consensus building device. We understand that it has been put to nefarious use. The longest one-man filibuster, by Senator Strom Thurmond, was used against the Civil Rights Act of 1957. Yet that measure — the first modern civil rights act — still managed to clear the Senate, and by a vote of 72 to 18, with a majority of both parties.
The filibuster is one of the issues that inclines us, come November 3, to the Republicans. Particularly because the Democrats see the filibuster as a hurdle against packing the Supreme Court and packing the Senate with new states. And even approving an interstate compact for the popular vote of the president. All we’re saying, though, is that tonight will be, among other things, a reminder of the tricks that History likes to play.