The Senate has been on the brink of ending the filibuster twice in the last 15 years. In 2005, Majority Leader Bill Frist, frustrated by a Democratic filibuster of seven federal judicial nominations that had gone on for months, considered changing Senate rules to end the filibuster. In the end, Frist made the decision not to “go nuclear,” concluding that, long term, keeping the filibuster in place was better for the institution of the Senate and, therefore, better for the country.
Eight years later in 2013, it would be Harry Reid and a Democratic majority that would do away with the filibuster for executive branch appointments and judicial nominations, with the exception of the Supreme Court. Despite warnings from the minority that it was a decision they would live to regret, Reid and the Democrats deployed the nuclear option anyway.
Let me be clear: when I say “packing the court” I don’t mean nominating many judges of one idea or another, like Joe Biden does. I mean it the way FDR and those who came after him understood it, i.e., increasing the number of members of the Supreme Court to make sure that there are enough judges of your idea to make “it” happen, no matter what “it” is.
Technically speaking, it’s not a constitutional issue either way. The filibuster isn’t enshrined in the Constitution and neither is the number of Supreme Court judges (unlike, say, the number of Senators or Representatives.) The fact that the legitimacy of our judiciary hangs on procedural/legal issues and not constitutional ones is a weakness of our system. Personally I don’t think the Founders envisioned the large role the judiciary plays in our system, but when John Marshall unilaterally made the Supreme Court the arbiter of constitutionality, that pretty much settled the issue. Getting rid of the filibuster for judicial nominees was Harry Reid’s expedient to get his way on them. It was controversial at the time; even some of his supporters said it would come back to haunt the Democrats. It has.
The fundamental problem on a Federal level is that our legislature either cannot pass proper legislation or, when it can, cannot write it properly. The ACA is a classic example of this. Sprawling and complicated, the Supreme Court up until now has had to fix its deficiencies. A country with long established entitlement programs such as Social Security and Medicare should be able to make something like this stick, but it’s been a struggle. (The authors and administrators also engaged in overreach, something that triggered things like the Spanish Civil War.) If our legislature would be more strategic in its vision and detail-oriented in its drafting, our courts wouldn’t have as much to do. But it’s not, and we have the mess we have.