The U.S. Senate Filibuster Rule and its Demise

Eliminating the Filibuster Rule for Supreme Court appointments is a bad thing. Those who know my position on Judge Gorsuch’s nomination to the Supreme Court, may find it surprising that I think so. Without fear or favor to any political party though, our focus on these pages is always good governance. To see the good governance merits of the U.S. Senate Filibuster Rule we must, for the moment therefore, set the merits of Judge Gorsuch’s eminent qualifications to serve on the Supreme Court aside. We must also set aside any legitimate concerns we may have about his record, as well as the plethora of untruthful, illegitimate, illogical, and constitutionally irrelevant reasons relied upon by those who oppose his confirmation

The U.S. Constitution properly empowers the House and Senate to make its own rules. Historically, the Senate’s rules allowed for a filibuster that required a super-majority to end the debate and proceed to a vote on the merits. The Senate Filibuster Rule provided a political mechanism for a minority to be heard in a political system where others with more votes rule.

The Filibuster Rule increased the likelihood that a controversial and contested government action held legitimacy in the eyes of the citizenry. Why? Even though a minority with deep convictions against an action lose, they are heard during of the legislative process. That instrument of good governance is gone in the future as to Presidential appointments. We knew this day was coming when Democrats changed the rule to prevent Republicans from filibustering President Obama’s appointments. And, the GOP better understand that all appointments, now forever, depend on a mere political majority in the Senate, with no real opportunity to hear even a principled position from a minority. 

I am grieved that we are more divided ideologically now than during the Vietnam era or even just prior to the Civil War. I fear Democrats and Republicans have given up any willingness to work with each other. Collectively they have forgotten that together they represent a great nation. When you live in as dangerous a world as we do, it is no time to form a circular firing squad.

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William (@Prof.WWJD) serves as President of Salt & Light Global and Editor-in-Chief of SLG Witness. Together, he and his bride Marilyn home educated their children. Prof. Wagner holds the academic rank of Distinguished Professor Emeritus (Law and Constitutional Governance) where, as a tenured professor, he received the Beattie Award for Teaching Excellence. A frequent speaker at world conferences, Professor Wagner has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression. Professor Wagner’s writing is published a number of articles, books, and other publications, including a national best seller (#1in its category). As lead amicus counsel a variety of matters before the United States Supreme Court, he authored briefs on behalf of various Christian organizations. He also authored written testimony, evidence, and briefs in such forums as the Swedish Supreme Court, the U.S. Congress, and the U.K. Parliament. He has further addressed many executive, legislative, parliamentary, and judicial audiences throughout the world, and presented at various diplomatic forums including the United Nations Human Rights Council in Geneva. Professor Wagner previously served in the United States Courts as a federal judge. Prior to his appointment on the federal bench, he served as a legal advisor and the chief American diplomat for the Department of Justice at an American Embassy in Africa. There he led a diplomatic mission charged with strengthening good governance and the rule of law. His international service also includes an appointment by the United States Courts as Commissioner to Canada. Over the years, Professor Wagner has provided international assistance to the justice sector institutions of numerous countries on five continents. Professor Wagner also served as Senior Assistant United States Attorney, litigating hundreds of federal cases and serving as chief of appellate litigation for the Office of the United States Attorney. Prior to serving in the Justice Department, Professor Wagner served as legal counsel in the United States Senate and as chief counsel to the Senate Judiciary Committee of the Michigan legislature. As chief counsel, he supervised all legislative issues involving the separation of powers, due process, and other protections of individual rights and liberties, including the right to free expression and the free exercise of religious conscience. Professor Wagner received the post-doctoral Danforth Fellowship in Law after earning his J.D. in 1986. He serves, or has served, on the executive governing boards of a number of international and national ministries. Soli Deo Gloria.