By Mac Campbell
February 13, 2017 at 5:00 am ET
Recently, there has been flippant talk about bending or changing U.S. Senate rules to advance Trump administration goals and nominees. The decision in the 113th Congress to use the “nuclear option” to provide simple-majority consent for nominees (save those to the Supreme Court) means that ultimately all of President Donald Trump’s appointments will be confirmed with a minimum of 51 votes. Senate Majority Leader Mitch McConnell also has the option of extending this practice to the pending Supreme Court nomination. The Kentucky Republican is purportedly loath to take this action, but he will be under enormous political pressure to do so.
Perhaps, however, institutional annihilation is not necessary. Senators could negotiate a change in the Senate rules to reinstate the filibuster for all nominees in exchange for simple majority votes for the confirmation of President Trump’s cabinet nominees, his current Supreme Court nominee, and judicial appointments up to the number that President Obama was able to confirm under the curtailed Senate procedures. This proposal would be fair, would preserve the important and distinguishing constitutional role of the Senate, and would guarantee the minority voice for consideration of the next Supreme Court nomination.
The Framers of the Constitution anticipated that a strong, erudite, and deliberative Senate would bring strength and poise to the government and the nation. Unlimited debate is the tool the Framers intended the Senate to use to fulfill its constitutional role.
In his notes of the debate at the Constitutional Convention, Madison outlined the “ends to be served by [the Senate]. These were first to protect the people against their rulers: secondly to protect the people against the transient impressions into which they themselves might be led.”
He continued, “. . . a numerous body of Representatives were liable to err also from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited numbers and firmness might seasonably interpose against impetuous councils.”
To allow senators to perform their constitutional role in the new system of checks and balances, a set of rules for the Senate was adopted. These rules were written to allow for deliberation, which was intended to be the Senate’s most important power in the balanced government. Rule changes and maneuvers like the “nuclear option” depreciate the Senate that Aaron Burr described as “a sanctuary; a citadel of law, of order, and of liberty” where “if anywhere, resistance will be made to the storms of political frenzy and the silent arts of corruption.” Where, Robert Byrd taught, controversial decisions would be “hammered out on the anvil of lengthy debate.” Where, George Washington explained, we pour government decisions into “the senatorial saucer to cool.”
Reinstituting the filibuster for nominees is an important part of the Senate’s constitutional role of providing advice and consent for nominees. The reason the Framers gave that power to the Senate, and not the House of Representatives, is because they depended on the Senate, as Madison said, to be “an obstacle to the instability, which not only history, but the experience of our country, had shown to be the besetting infirmity of popular governments.”
The Framers knew that legislative majorities were prone to abuse their powers. The Senate majorities in the 113th and 114th congresses each abused theirs in their own ways. Continued “nuclear” brinkmanship would exemplify the devolution of the republic that the Framers feared. The Senatorial way to resolve these issues would be to deliberate and negotiate a détente.
Mac Campbell authored the Great Magness Trial and formerly served as counsel to three U. S. senators. He is a senior vice president at the Lincoln Policy Group.