The champions of gridlock who are blocking action on President Obama's Supreme Court nominee are basing their obstruction on a canard. They know it - which must be why they are previewing their next line of attack. It's one that Alexander Hamilton - the trendiest of our founders - warned about. And one that Aaron Burr, who killed Hamilton in a duel, enabled.
The Republicans' argument that a Supreme Court vacancy should last until we inaugurate a new president is baseless. It has now been more than 60 days since the president nominated Judge Merrick Garland to fill Justice Scalia's seat. For the past four decades, the average Supreme Court confirmation has taken just 67 days. No Supreme Court nominee in American history has waited more than 125 days for a confirmation vote.
And with good reason. First, Americans deserve a Supreme Court that upholds our values of equality, liberty and justice for all. An eight-justice Supreme Court lacks the tie-breaking vote needed to settle complex questions of law and protect our constitutional rights.
Second, President Obama was elected to a four-year term - and senators to a six-year term. The president did his job by naming Judge Garland. Senators now ought to do theirs by holding a timely hearing and an up-or-down vote. A resounding majority of Americans has rejected the argument that senators should delay consideration of Judge Garland, according to a recent CNN poll.
Perhaps that is why some Republican senators have outlined their next tactic if the new president turns out to be a Democrat: a filibuster. Senate rules allow any senator to trigger a filibuster of a Supreme Court nominee. It will then take a supermajority of 60 votes to move forward. And executing a filibuster does not require anyone to utter a word on the Senate floor beyond "I object." The rule gives a minority of 41-out-of-100 senators veto power over almost all legislative business.
Kansas Sen. Pat Roberts - who voted to confirm Judge Garland to the D.C. Circuit in 1997 - explained why he might filibuster a Democratic president's Supreme Court nominee this way: "When the founding fathers sat around - it used to be 67, and now it's down to 60 [senators to defeat a filibuster]. But if you go to 51, then you're just like the House. We don't want to be like the House."
Both of Sen. Roberts' claims are false.
In writing the Constitution, the founders considered - and expressly rejected - supermajority votes in the Senate. They made a few exceptions, such as votes ratifying treaties and overriding presidential vetoes. The filibuster rule, however, is not in the Constitution.
Why? Because, in the words of Alexander Hamilton, requiring a supermajority to do basic tasks like confirmations and passing laws would be used to "embarrass the Administration, to destroy the energy of government," and subject decisions of Congress to the "caprice, or artifices of an insignificant, turbulent, or corrupt junto."
Call it Hamilton's clairvoyance.
As the Brookings Institution's Sarah Binder explained, the original Senate rules prohibited routine filibusters. The rules of the House and the Senate were nearly identical and allowed action to proceed on a simple majority vote. In 1805, in a farewell address that came months after he killed Alexander Hamilton, Aaron Burr urged the Senate to modify its rules. Senators took Burr's advice, and eliminated the rule that allowed Senate action on a majority vote. It took decades before a minority of senators realized they could wield veto power over almost all Senate business.
Even if the Senate were to return to its roots and abolish the filibuster, it would never become "just like the House," as Sen. Roberts warns. The Senate is a chamber where each state is represented equally - whereas every person is (theoretically) represented in the House. People living in tiny states such as Rhode Island, for example, have far more power in the Senate than people living in California. The Senate's structure - two senators-per-state - is one of many checks-and-balances built into our system.
The filibuster rule is an accident of history. It ought not be abused to weaken Americans' access to justice by hobbling the Supreme Court with an extended vacancy. Rather, senators should stand up and do their job: hold a hearing and a vote on Judge Garland. Filibustering - now or in the future - was never in their original job description.
[Where does your senator stand when it comes to providing Judge Garland with a fair hearing and a timely vote? Visit SenateDoYourJob.org to find out and send your senator a message!]