I have C-SPAN 2 on my computer right now, featuring Chuck Schumer sanctimoniously prattling on about the filibuster. He is defending the filibustering of federal judge nominations on the grounds of "age old checks and balances." He is arguing the Founding Fathers wanted the Senate to serve as a check on majoritarian impulses. That's correct. But Schumer says that sometimes the Senate has to operate by unanimous consent. Sometimes with 67 votes. Sometimes with 60. And sometimes that it operates by simple majority. This is how the Founders wanted it, Schumer says. The problem with the Schumer argument is that some of those votes are dictated by the Constitution, such as super majorities for ratifying treaties, amending the Constitution, or overriding vetoes. But the 60 vote total to break a filibuster is no where in the Constitution. In fact the filibuster, existing because of an unintentional quirk in Senate rules, was used infrequently in the 19th Century. The cloture procedure is less than 100 years old. Thus there is no Constitutional significance to the 60 votes needed to end debate in the Senate. I continue to say that I oppose the "nuclear" option, but only because I think forcing Democrats to actually continue debate on judges without allowing a vote is institutionally more sound and actually better politics for the Republicans.
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