In January 2011, over three hundred historians, political scientists, and scholars presented a petition to the United States Senate, calling for an end to the filibuster. The petition read:
“We, the undersigned, American historians, political scientists, and legal scholars, call upon our senators to restore majority rule to the United States Senate by revising the rules that now require the concurrence of 60 members before legislation can be brought to the floor for debate and restoring majority vote for the passage of bills.”
The petition was drafted by Joyce Appleby Professor of History at UCLA and signed by her academic colleagues. Appleby explained her reasoning for ending the filibuster in a column for the Huffington Post. “Pundits, public figures and the politically oriented,” she began, “have awakened to the fact that a Senate procedural rule is undermining democracy in Congress.” Given how Senate Republicans were abusing the filibuster, the only redress was to restore majority-rule by eliminating the filibuster. Some Senate Democrats agreed and the petition was read on the floor of the Senate.
The petition’s signers were not the first scholars to call for an end to the filibuster. Writing in the New York Times, in March 2009, historian Jean Edward Smith, author of biographies of John Marshall, Ulysses S. Grant, and Franklin D. Roosevelt, described the use of the filibuster as “minority tyranny.” He wrote: “Instead of majority rule in the Senate, the tyranny of the minority prevails. . . . . In the great legislative reapportionment cases of the 1960s, the Supreme Court defined democratic government as majority rule based on the principle of one person, one vote. It is time to apply that standard to the Senate.”
At the time Smith wrote, the Democrats controlled the Senate, as they did in 2011 when the scholars’ petition was first submitted to the Senate. The Democrats maintained their majority after the 2012 elections, and January 2013 the historians resubmitted their petition. During Obama’s first term and into 2013, Senate Republicans had filibustered dozens of Obama’s nominees and had delayed a vote on the Affordable Care Act. Frustrated progressives sought changes in Senate rules, including requiring only a majority vote of senators, not sixty, be allowed to cut off filibusters on judicial and executive-branch nominees. The so-called “nuclear option” was needed, progressives argued, because Senate Republicans were using the filibuster to shut down the Senate and thwart majority rule in the United States.
None of the voices calling for the Senate to alter its rules pointed out that it was the Democrats, including then Senator Barack Obama, who, along with other Senate Democrats, launched a filibuster against Supreme Court nominee Samuel Alito. When asked why he backed blocking Alito’s nomination Obama told ABC’s George Stephanopoulos, “I will be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values, you know.” Not enough Democrats went along with Obama to prevent a vote and Alito was confirmed by a vote of 58-42 (Obama voted No).
A decade later, Obama had changed his mind on the merits of the filibuster. A month after Justice Antonin Scalia’s death in February 2016, Obama nominated Merrick Garland, the chief of the United States Court of Appeals for the District of Columbia to fill the vacancy. Considering the move to be a lame duck appointment, Senate Republicans immediately announced they would not allow the full Senate to vote on the nomination. Obama condemned the effort and urged the Senate to allow a vote.
To his credit, Obama admitted that he had taken part in the effort to block Alito, but his press secretary argued Obama’s vote was “merely symbolic.” A year later, with Donald Trump in the White House, Democrats have rediscovered the merits of the filibuster. Senate Minority Leader Charles Schumer (NY) has announced he will use it to prevent a vote on Trump’s nominee, Neil Gorsuch. The Republicans could force a vote by using the nuclear option, which right now seems likely.
By going nuclear, Senate Republicans will be doing what those three hundred plus scholars demanded. Joyce Appleby passed away earlier this year, but for the other signers, and for Jean Edward Smith, it will be interesting to see if any come and publicly support what they had so forcefully demanded just four years earlier. Or we will see if their petition was a partisan effort, not a principled one to make the United States Senate democratic.