If Barack Obama wins the White House and the Democrats also take enough new Senate seats to get to a 60-vote supermajority, they will be able to force floor votes by invoking "cloture" to end a GOP filibuster. To grasp the impact of such an event, it is important to understand how the workings of the House and Senate differ.
The House runs on the will of the majority, with 218 Members able to run the place as dictatorially as can 435. Hearings are easily stacked, with the minority given little notice. Bills can be voted out on a party line, rules set for debate, bills voted through on the floor, under rules that prevent the minority from amending them.
The Senate is different: It runs on the consent of the minority. Until Senate Rule 22 was adopted in 1917, no party truly held control, because no one could cut off debate and force a floor vote.
Since 1917, Democrats have controlled the Senate for seven two-year Congressional cycles, covering eight of FDR’s years, Lyndon Johnson’s first two years, the post-Watergate Congress that faced Gerald Ford and Jimmy Carter’s first two years. Republicans have never had such a supermajority.
In 1937, FDR proposed to pack the Supreme Court by raising the number of Justices from 9 to 15. Only the fact that the Court began upholding New Deal legislation saved the country from FDR’s plan. In 1965, with a fresh supermajority, Democrats passed Medicare, under cost assumptions that proved low by (NOT a misprint) over $34 trillion. While Gerald Ford was in the White House, only his veto pen limited what Congress did, as a 2/3 vote in both houses is needed to override a veto. A President McCain could check a runaway Congress. In Jimmy Carter’s first year, the 1977 Social Security tax hike, then the largest in American history, passed. Carter aimed to ensure the system’s solvency for a generation; the fix lasted five years.
Perhaps the most significant aspect of a viable GOP filibuster is for judicial nominations. The next President will likely appoint at least one Justice. Every president has, save for Jimmy Carter (for which we may be grateful); Nixon appointed four. Obama has already stated that in addition to judicial philosophy he would seek judges who share his sense of social justice:
“We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.”
Expect, then, that Obama would seek Justices to the left of even the Court’s four-Justice liberal bloc. Look for clones of Lani Guinier, the 1993 Clinton nominee for the civil rights post at the Justice Department, a hard-left African-American who wrote that she did not regard conservative blacks as “authentic.” Guinier’s replacement, equally radical, was Deval Patrick, now governor of Massachusetts and a front-runner for Attorney-General. Patrick pushed affirmative action hard.
There are about 660 federal trial judges and180 appeals judges in addition to the nine who sit on the Supreme Court. A president typically appoints one judge per week. Due to stalling by Senate Democrats, President Bush appointed fewer, leaving many vacancies on the appeals courts. Thus, the next president will appoint judges who can exert vast influence in thousands of cases. The Supreme Court decides fewer than one hundred cases annually, though landmark rulings change everything. Most dangerous is the added harm the Supremes can inflict if they intervene further in national security cases, complicating America’s task of defending itself against future terrorist attacks, including a WMD strike on the homeland.
John McCain has said that he would appoint Justices like Chief Justice John Roberts and Associate Justice Samuel Alito. Both are moderate conservatives who usually seek to rule narrowly on cases, avoiding the sweeping rulings Obama seeks. No matter how the election turns out, Democrats will have the 41 Senate seats necessary to be able to filibuster judicial nominations; but the GOP must hold Democrats below 60 in the Senate to have the same power.
If McCain wins and the Democrats achieve their 60-senator filibuster proof majority, McCain won’t be able to get any conservatives confirmed to any court. And every liberal bill that comes out of the House will pass the Senate and probably withstand any veto.
History augurs a sharp left turn if Democrats take the White House and reach 60 Senate seats. Given the most dangerous global financial and economic climate in generations, the fallout from one-party excess could be catastrophic. Equally harmful, Obama judges surely would put a far-left imprint on the law, one difficult to reverse in the future; the Court’s course has mainly been leftward since 1937.
A Democratic supermajority would greatly help Obama “change the world.”