By DR. LARRY MOSES
No one asked me but… The United States Senate voted to change its operating rules once again.
The fuss over the appointment of Neil Gorsuch to the Supreme Court drew American’s attention to the rather strange practice of the filibuster. Using the filibuster, Senators could talk a provision under consideration of the Senate to death.
While there is no Constitutional basis for the filibuster, the Senate does have a Constitutional right to set up the rules whereby the Senate will run. The filibluster, excuse me, the filibuster is one of those rules. It is a method to delay and eventually kill a vote on a bill that is likely to pass even though the minority party is opposed to it. Since the minority legislators don’t have the votes to kill the bill or appointment, they tie up the Senate by allowing no other business to take place. This is done in hopes that the majority will give up and drop the action they are in favor of so they can get on with other business.
Some working definitions follow: “A filibuster (from Early Modern English, c. 1580: filibutor, “pirate”) is a parliamentary procedure where debate over a proposed piece of legislation is extended, allowing one or more members to delay or entirely prevent a vote on the proposal.” Prior to Harry Reid’s move to change the rules of the Senate, it took a super majority – two thirds of the Senate to close down a filibuster. This was called the “cloture rule–Rule 22– and was the only formal procedure that Senate rules provided for breaking a filibuster. Under cloture, the Senate could limit the filibuster of a pending matter to 30 additional hours of debate.”
When the federal government was formed under the Constitution, each House of Congress was given the power to develop their own rules of operation. Article I Section 5 states, “Each House may determine the Rules of its Proceedings…” In 1789 when the original rules for running the House and the Senate were established, the rules for both Houses were nearly the same. Both of the Houses cut debate on issues under a well accepted parliamentary practice called a “previous question” motion. When a member of a legislative body called for the previous question, a simple majority vote could stop debate.
In 1805, under the direction of V.P. Aaron Burr, (yes, the man who shot Alexander Hamilton in a duel and was indicted for murder and yes, the same Aaron Burr who would be tried and acquitted for treason) decided that the Senate needed to clean up their rules of operation. When the new rules were completed, someone forgot to include the “previous question” provision for ending debate within those rules. This was not a covert or overt act, merely an oversight. This did not really become much of an issue until the debates over slavery in the years just preceding the Civil War.
In 1917, at the behest of President Wilson, the Senate adopted a procedure known as the cloture vote, which could end a filibuster. Prior to 1917, there were many attempts to get the filibuster under control by a simple majority vote but these efforts were stymied by filibusters. In 1917, a Republican minority filibustered President Wilson’s war efforts and the Democrat majority in the Senate forced through the cloture rule. While the Republicans opposed the Democrat majority’s effort to close the filibuster, a compromise was reached and a super majority of the Senate would be allowed to stop debate. This became the rule of the Senate until Harry Reid used his Democrat majority to change the rules of the Senate to a simple majority to close debate. Harry did indicate that this would not apply to Supreme Court Justices. However, he opened the door for the Republicans to change the rules to include the Supreme Court Justices and that is what Senate Majority Leader Mitch McConnell did. The Democrats haven’t been this mad since the Republicans took their slaves away from them by championing the 13th Amendment to the Constitution.
Interestingly enough, the rule as it now stands is the rule that was instituted when the first United States Senate was formed. It is also the rule that the House of Representatives has always functioned under. Any member of the House could call for an end to a debate by calling for the previous question and if a simple majority of the House so votes, the debate ceases and a vote on the issue is taken.
The partisan vote headed by Mitch McConnell, was much the same as the partisan vote headed by Harry Reid when he garnered the votes needed to change the rules to stop a filibuster in the Senate. The differences were Harry’s rule change was passed without a single Republican vote while McConnell’s rule change was passed without a single Democrat vote. Judge Gorsuch was confirmed 54-45 when three Democrats joined all of the Republicans in voting for his appointment. I would once again point out to our Democrat brothers that your valiant leader often reminded Republicans as he took out his pen and signed another one of his famous Presidential decrees, “Elections have consequence.” And indeed they do.
The Democrats opposition to the appointment of Neil Gorsuch is not based on his legal rulings or really even his ideology. It is basically in retribution to the Republicans not allowing a vote on the highly liberal jurist, Merrick Garland. It is time to stop appointing judges based on politics and appoint judges on their willingness to enforce the law as written rather than how they wish it werewritten. A majority of liberal Democrat’s objection to Gorsuch is that he has not shown a tendency to let political values interfere with the law. The tragedy of the Supreme Court since the inception of the New Deal in the 1940s is that it has become political. What was once thought of as the legislative referee has become the quarterback of the team. The founding fathers viewed the court as the weakest of the three legislative body and gave it no power to determine constitutionality of law. That was left to the President and the legislative bodies. The power to determine constitutionality of law was usurped by an unconstitutional act of the Court early on that has lead to the dominant position it now holds.
Thought of the week…A Supreme Court justice needs to understand that he/she is not a politician. He/she needs to understand that the judiciary is a passive branch of government. His/her decisions should not pro-actively seek to set policy.
-Thomas Rex Lee
