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Comment by mattnewton | Hacker News Reader

51 senators could change that rule any time though, it’s just an accidental convention that hasn’t had the best track record imo

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Nobody changes it because they know they are going to need it when they are the minority. Someone is gonna have to take one for the team and pull the plug on it, but I have little faith in our government ever doing the “principled” thing.

In 2013, Senator Harry Reid did it for federal judges (and not supreme court judges). At the time, McConnell told them that if they killed the filibuster for federal judges, he would kill it for supreme court justices. In 2017, he followed through on his promise, the orange fool appointed 3 justices, and now Roe v. Wade has been overturned.

It would not be crazy to link the overturning of Roe to the 2013 decision of Harry Reid to invoke the "nuclear option." It appears to have led to an era of unprecedented judicial activism.

I doubt that getting a few extra progressive federal judicial nominees through was worth those supreme court seats. For now, it seems that enough of the Senate has learned their lesson about removing the filibuster.

You're missing a piece of the puzzle actually - this goes back to George Walker Bush's presidency.

Democrats were being extremely obstructionist in GWB's federal judges. Republicans were considering throwing out the filibuster in response. Moderates from both parties got together and convinced their respective sides to back down and let judges get through while maintaining the filibuster.

In 2013, the tactic was pulled out by Republicans, and the Democrats used the - given the history of this tactic - unsurprising response after some time. Which, of course, led to 2017.

It would be absolutely insane to link overturning Roe to Reid's decision. Everyone already knew McConnell would have gotten rid of it anyway the second a supreme court justice was fillibustered. Look at his actions in the Garland and Barrett nominations, compared to that getting rid of the fillibuster for judges is peanuts.

The only mistake Reid made was not to do away with the fillibuster fully

If you threaten to do something and don't follow through on your threats, they have no more meaning.

McConnell and his party apparently had a similar situation 10 years before and did not throw out the filibuster.

It wasn’t the same situation because there wasnt a court majority at stake. Unless not voting on the Supreme Court nominee’s of Obama was also because of Reid’s actions?

The filibuster isn’t even dead. Senators can still get up there and talk for as long as they want (aka what the filibustering actually is). The current filibuster rule is basically a senator just saying “yeah I want to filibuster this” and for some reason everyone just goes along with it.

this isn't quite accurate. The modern filibuster is basically a move to table discussions, and it takes 60 senators to overcome that delay and continue to a vote. The problem is the onus is on the 60 senators who want to pass it, and not the 40 senators who want to delay voting.

In this way it's stupidly easy to block any legislation by telling the other side "I'm gonna filibuster this." and if they want to pass it they need to pull the ~10+ votes and make it bipartisan. This is a lot of work so they normally don't even try.

>In 2013, Senator Harry Reid did it for federal judges (and not supreme court judges).

Yes, it was an extremely aggressive and short sighted thing for him to do. Most people don't know this story though, so it seems the Democratic Party gets a pass.

Here's McConnell lambasting Reid about it in 2013.

https://www.c-span.org/video/?316395-12/minority-leader-mcco...

>It appears to have led to an era of unprecedented judicial activism.

Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.

https://en.wikipedia.org/wiki/Judicial_activism

Based on recent decisions, we seem to be currently in an era of judicial restraint, not activism. Again, the SCOTUS doesn't create laws, congress does. That's the way the system was designed. I hope the Citizens United decision will get overturned.

https://en.wikipedia.org/wiki/Judicial_restraint

But there is likewise nothing preventing court packing right now except the concern of some democrats right? They could assign 8 more, then next time there is a swap the gop would add 16 etc. You have to go exponential by nature of the vote to account for deaths. So in as little as 116 years the whole population might be on the bench! I don't like that the macro level policy of our nation is getting decided based on rules of order and who is willing to change them. I'm not a historian, but it seems like the filibuster was already a hack around intended operation of the legislature. Time limiting it would still serve the purpose of preventing the minority from getting shut down with no chance to speak, but also prevent its abuse to require 60 votes on absolutely everything.

>But there is likewise nothing preventing court packing right now except the concern of some democrats right?

Right. FDR threatened this during his administration and bullied the SCOTUS into deciding his way. He was quite Machiavellian. For me, doing something like this would neuter one of the tiers of the check and balance system.

https://www.history.com/news/franklin-roosevelt-tried-packin...

>I'm not a historian, but it seems like the filibuster was already a hack around intended operation of the legislature.

Yes, but it's procedure that the senate had agreed on for quite some time. There's nothing in the constitution that says how many votes are needed to pass, the senate decides that, and for most things, it's 60.

>require 60 votes on absolutely everything.

Depends on how you look at it. Do you want a political party to make laws of the land with only 25+ states supporting it? It sounds good when it's something you support, but doesn't sound great when it isn't. The idea of the 60 vote rule is the federal government can't enact legislation that a supermajority of the country isn't in favor of. Regardless of your party affiliation, you can imagine what horrible legislation would be passed if the opposing party was allowed to pass anything with just 50+1 votes in the senate.

No it was a wise and practical decision. And the fillibuster has always been a stupid accident of the rules. It delayed civil rights bills by over a decade

Everyone knew that McConnell was lying and would have overturned the fillibuster on judges the second a supreme court fillibuster started. And we would have gotten the same extremist supreme court that laughs at restaint and takes away fundamental rights

Apparently he had the option to do it under Bush when Democrats were obstructing Bush's nominees to the federal courts, and he chose not to, so the evidence suggests that he would not have just removed the filibuster for the fun of it.

Imagine McConell blaming Democrats for his own unpopular actions.

The Democrats could have been smarter tactically. Trump’s first SC nominee was Gorsuch, certainly conservative but a stellar jurist, and an uncharacteristically good pick from Trump (compare to the other names on his 2016 shortlist). The Democrats had no cards besides obstruction, which would certainly lead McConnell to kill the filibuster. If they had made the reasonable guess that Trump’s next pick would be easier to beat, saved their powder, and reluctantly let Gorsuch through, McConnell would have had to kill the filibuster for Kavanaugh. For Kavanaugh, a far more controversial pick than Gorsuch, he wouldn’t have had the votes.

>No it was a wise and practical decision.

Well the Democrats just lost all chance of any new gun control and will probably have some gun control repealed. Not only that, they lost the power of Democrat controlled states to enact gun control at the state level and will have much of state gun control repealed. They completely lost the right to abortion at the federal/constitutional level as well. What did they gain for that immense cost? Some federal judges back in 2013. If you think that was wise and in no way short sighted, I really don't know what to say.

The GOP in two years from now if they control Congress will ignore the filibuster and pass a national abortion ban at the federal level at the first opportunity. Anyone believing these folks haven't been lying or won't be complete hypocrites by now are living in an alternate reality.

You literally don't know that though. All signs point to them not doing that, because allowing abortions is actually popular. The only people telling you that Republicans will do that are Democrats. Also, even if they take a majority, they won't have a veto-proof majority, so there is no reason to go nuclear in the Senate when Biden is going to veto everything they do.

If they cared about popular will, almost every GOP controlled state in the USA wouldn't be as we speak trying to implement the most extreme abortion bans they can.

Mitch has said a national ban is a possibility: https://twitter.com/foxnews/status/1523246341173952517

Pence has said this should happen: https://www.washingtonpost.com/politics/2022/06/24/abortion-...

Popular will doesn't matter when you don't need to listen to popular will to keep power. If your insane, extreme base is all you have to pander to to keep power, the GOP is doing just that.

History won't look fondly on us for the absolute laughingstock of a policy it is at the highest levels of power. "Look even back in 2025, people were a bunch of monkeys with nuclear weapons. Look how they would decide on policy."

I assume they won't change it because they are afraid of what the other side will do when they are in power.

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