ICYMI: Hatch in Politico: Don’t Change the Filibuster Again
"Returning to the pre-nuclear option filibuster rule would serve neither the interests of the Senate as an institution, nor constitutionally limited government more broadly."
Washington, D.C. – Senator Orrin Hatch, R-Utah, the most senior Republican in the United States Senate, published an editorial in Politico Magazine this morning outlining why Republicans should not return the judicial filibuster in the new Congress.
The full text, as published in Politico, is below:
Don’t Change the Filibuster Again
By SEN. ORRIN HATCH
With each passing year since arriving in Washington in 1977, I have come to revere the Senate’s distinctive character and its unique role in our system of self-government. Having been a member of that body for 38 years, I am as much a Senate institutionalist as anyone.
The Senate’s rules and traditions are much more than historical oddities—they represent the ways our upper chamber has, over many decades and even centuries, enshrined principles of meaningful deliberation and considered judgment into the very structure of the institution. These distinctive precedents and procedures are what make the Senate both unique and effective.
In recent months, I have decried procedural abuses that have damaged many of these institutional features. The Senate’s longstanding traditions of robust debate, an open amendment process, and regular order for committee work have come under sustained assault. Last year, 52 Democrats even invoked the so-called “nuclear option” to lower the 60-vote threshold for ending debate on most nominations.
Such actions represent a direct affront to the Senate’s characteristic mode of operating by deliberation and consensus. As the most senior member of my party in the Senate, I have felt compelled to speak out against this shameful institutional damage. Many others in both parties have expressed similar dismay. The Senate is broken, and everyone knows it.
The incoming Republican majority must honor our promise to restore the Senate to regular order and reclaim the mantle of “world’s greatest deliberative body.” To do so, we must renew our commitment to substantive debate and an open process for amending legislation. But returning to the pre-nuclear option filibuster rule would serve neither the interests of the Senate as an institution, nor constitutionally limited government more broadly.
While the legislative filibuster has been critical to the Senate’s deliberative lawmaking for more than two centuries, use of filibusters to defeat nominees who have majority support is a decidedly recent phenomenon. In fact, the first such nomination filibuster occurred in 2003—hardly an historic practice. Although the prospect of filibustering nominees could sometimes be a useful tool for the minority, it was never central to the Senate’s deliberative identity.
Because Republicans will soon control the Senate and its committees—and can therefore slow or block controversial nominations by other means—the rule is irrelevant for the next two years. And readopting a 60-vote threshold for nominees now is unlikely to do much good in the long run. By taking the extraordinary step of eliminating nomination filibusters by a bare majority vote, Senate Democrats demonstrated nothing short of contempt for that standard. A temporary return to the 60-vote threshold would last only until the next Democratic majority found abolishing the rule in its political interest.
Rather, an immediate return to the prior nominations standard under Republican control would only reward Democrats for their misdeed and—since they have reaped the benefits but borne none of the costs—Democrats would have further incentive to engage in procedural abuses. Such a return would do nothing to prevent the same cycle of abuse from repeating itself in the future. To safeguard the Senate’s core procedural protections—including the indispensible and truly historic legislative filibuster—Democrats must live with the consequences of such abuses when voters return them to the minority.
As important as the institutional harm to the Senate is the significant damage done to the federal judiciary. Democrats used the nuclear option to pack important courts like the D.C. Circuit with far-left judges, some of whom have already begun to ratify President Obama’s executive lawlessness in health care, environmental regulation, and elsewhere. The next Republican administration will have to work hard to restore balance to the federal courts.
Reinstating the 60-vote threshold for nominees would make this task impossible and serve to perpetuate the imbalance. Republicans would need 60 votes to confirm their nominees, while Democrats needed only 51 votes to confirm their own picks. Such a partisan double standard makes no sense and would cause irreparable harm to our third branch of government. To restore the prior nominations threshold would be to cede the federal judiciary to liberal activists.
Republicans are right to seek to return the Senate to its historical role and restore its fundamentally deliberative character. We can do so by reinstituting principles of regular order, honoring the committee process, allowing amendments, encouraging civility, preserving the legislative filibuster, and seeking constructive action through robust debate. But requiring 60 votes for nominations will do nothing to undo recent institutional damage—both to the Senate and to the courts—and will only invite further destruction of the upper chamber and the system of government we have sworn to defend.
###
