Listening to Democrat Senators threatening and cajoling their colleagues on Judge Gorsuch’s nomination, you would think that the 60-vote cloture rule was enshrined in the Constitution way back in 1789 or thereabouts. Sorry. Not true.

Cloture and the filibuster have always been procedural and therefore tactical rules of engagement in Congress, especially in the Senate. That means that they have been modified from time to time. Usually as the result of anger at a filibuster, or anger at the failure of a filibuster. And for much of the 20th century, that anger came from Southern (often Democrat) senators who were not keen to see civil rights legislation spread too far or wide in America.

In the late 40’s cloture thus required a hefty two-thirds vote. A filibusterer’s paradise, if you will. But by the mid 70’s (after the failure to filibuster the 1964 Civil Rights Act into oblivion by Senator Robert Byrd among others) that threshold for ending debate was reduced to three-fifths, or 60 votes in today’s senate.

So now we are faced with the nuclear obliteration of the filibuster – at least in relation to Supreme Court Nominations – to use the language of Democrats and much of the media. And the GOP as well, if you’re being honest. Because both sides don’t mind the theatre that such a simile produces. And the media loves it of course. But is it really the procedural equivalent of an A-bomb being dropped on a legislative body?

Hardly. Ask yourself this question:

Is the filibuster a vital parliamentary tactic that we would be wise to keep? It really doesn’t seem so. Constructive debate is the cornerstone of a parliamentary democracy, and Congress fulfills that role in America’s republic. And filibustering is the tactic used when the votes aren’t there, after the constructive debate has run it’s course. It’s all about delaying, laying siege to the intentions of the opposition and hoping to drain the lifeblood out of any proposed legislation. Think of the filibuster as a little bat that hangs in the rafters of Congress until it’s time every now and then to swoop down on the procedural process, and suck the life out of a bill.

Yes, the Democrat’s base is howling for blood. Like rabid wolves on the steps of Congress hoping to wake up that little bat in the rafters, and then watching with glowing eyes, as the proposed nomination dries up like a desiccated corpse.

Good luck. Not going to happen. And therefore, we are again at a point where the filibuster is about to change. It starts with Supreme Court nominations. Does it end there? Or will it eventually be gone forever if Democrats follow through and refuse to give Gorsuch the 60 votes for any (theoretical) cloture? It’s close and the next few days will see whether the filibuster survives.

If it dies, will Democrats insist on keeping Justice Ginsburg on life-support (literally) if – God forbid – she succumbs to a life-threatening disease. Will her votes be recorded by the beeps on her heart monitor? How many beeps make a yes? A no?

Silly perhaps. But because of the need to placate their base, Democrats may regret not giving Gorsuch the 60 votes. Let’s hope they do, for the sake of procedure, and that little bat in the rafters. Even if its presence is hardly the Senate’s most glorious feature.

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