Discriminations

On Tuesday night President Biden acknowledged to George Stephanopoulos of ABC News that he was now open to “reform” of the rule allowing Senate filibusters. Since his own deeply held, passionate views on the necessity of the filibuster over the years have been what might charitably be labeled inconsistent — varying in lockstep with which party’s ox was threatened with being gored — he is quite likely now to have trouble determining his current view, or even recalling his past views. Thus he could do much worse (and no doubt will) than considering (perhaps by having a staff member read to him) one of the most thoroughly researched speeches ever given on the topic on the floor of the Senate.

In nearly 10,000 words one of the most respected members of the Senate Judiciary Committee, assisted by “a group of constitutional scholars and law professors in some of our great universities and law schools” who edited and helped write the speech, expounded in great detail (very great detail, with many chapters and many verses) why the “nuclear option” being considered in 2005 to restrict unlimited debate was a very, very bad idea.

I highly commend the entire speech to readers here, and to the president (yes, all 10,000 words of it), but here are a few flavor-providing excerpts:

The Framers sought not to ensure simple majority rule, but to allow
minority views–whether they are conservative, liberal, or moderate–to
have an enduring role in the Senate in order to check the excesses of
the majority. This system is now being tested in the extreme.
I believe the proposed course of action we are hearing about these
days is one that has the potential to do more damage to this system
than anything that has occurred since I have become a Senator.
History will judge us harshly, in my view, if we eliminate over 200
years of precedent and procedure in this body and, I might add, doing
it by breaking a second rule of the Senate, and that is changing the
rules of the Senate by a mere majority vote.

….

Extended debate, the filibuster, was a means to reach a more modest
and moderate result to achieve compromise and common ground to allow
Senators, as Webster had put it, to be men–and now men and women–of
absolute independence.

….

The nuclear option was so named because it would cause widespread bedlam and dysfunction throughout the Senate, as the minority party, my party, has pledged to render its vigorous protest…. However serious the immediate consequences may be, and however much such dysfunction would make both parties look juvenile and incompetent, the more important consequence is the long-term deterioration of the Senate. Put simply, the nuclear option threatens the fundamental bulwark of the constitutional design. Specifically, the nuclear option is a double-barreled assault on this institution. First, requiring only a bare majority of Senators to confirm a judicial nominee is completely contrary to the history and intent of the Senate. The nuclear option also upsets a tradition and history that says we are not going to change the rules of the Senate by a majority vote. It breaks the rule to change the rule. If we go down this path of the nuclear option, we will be left with a much different system from what our Founders intended and from how the Senate has functioned throughout its history.

….

Put simply, the “nuclear option” would eviscerate the Senate and turn it into the House of Representatives. It is not only a bad idea, it upsets the Constitutional design and it disserves the country…. The “nuclear option” completely eviscerates minority rights. It is not simply a change in degree but a change in kind. It is a discontinuous action that is a sea change, fundamentally restructuring what the Senate is all about. It would change the Senate from a body that protects minority rights to one that is purely majoritarian…. [T]he “nuclear option” is a leap off the institutional precipice.

….

The “nuclear option” would gut the very essence and core of what the Senate is about as an institution–flying directly in the face of our Founders who deliberately rejected a parliamentary system.

After concluding, the Senator then introduced into the record a 3700 word speech by Senator Robert Byrd to the Center for American Progress making the same point (“Incredibly, today we stand right on the brink, maybe only days away, from destroying the checks and balances of our Constitution”).

By now it will not surprise you that the Senator offering that historical, philosophical, constitutional defense of extended debate in the Senate was none other than Joe Biden of Delaware.

If he were ever asked a question, it would be good of some reporter to ask why and when President Biden changed his mind. If pressed (hard as that is to imagine), he could add that he reconvened his scholarly advisory board of 2005 and were only too eager, happy, and willing to defend his emerging new deeply and passionately held view on the necessity of limiting debate. Such is the nature of scholarship today.