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As a body whose original purpose was to protect minorities from the power of majorities (which, the founders believed, would be represented by the House), the Senate was designed, from its inception, to allow deliberation.
According to one count, only twenty-three manifest filibusters occurred during the entire nineteenth century.
1917 cloture rule, by which two-thirds (now three-fifths) of the Senate could vote to end debate. But even then, only thirty filibusters occurred between 1880 and 1917, according to political scientists Sarah Binder and Steven Smith. Filibuster use remained low through the late 1960s—in fact, between 1917 and 1959, the Senate saw an average of only one per congressional term.
Only nine presidential cabinet nominations were blocked between 1800 and 2005;
In the 150-year span between 1866 and 2016, the Senate never once prevented the president from filling a Supreme Court seat. On seventy-four occasions during this period, presidents attempted to fill Court vacancies prior to the election of their successor. And on all seventy-four occasions—though not always on the first try—they were allowed to do so.
Unlike in Paraguay or Ecuador, however, impeachment in the United States has long been governed by norms of forbearance. Constitutional scholar Mark Tushnet describes the norm: “The House of Representatives should not aggressively carry out an impeachment unless…there is a reasonable probability that the impeachment will result in the target’s removal from office.” Since removal requires a two-thirds vote in the Senate, this means that impeachment should have at least some bipartisan support. After Johnson’s impeachment in 1868, there were no serious congressional efforts to impeach the
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His use of executive orders—more than 3,000 during his presidency, averaging more than 300 a year—was unmatched at the time or since. His decision to seek a third (and later a fourth) term in office shattered a nearly 150-year-old norm restricting the president to two terms.
The turning point came in the live-televised 1954 Army–McCarthy hearings in which McCarthy was humbled by Army chief counsel Joseph Welch, who responded to McCarthy’s baseless accusations by saying, “Have you no sense of decency, sir? At long last, have you left no sense of decency?”
Although groups such as the extremist John Birch Society “kept the McCarthyist spirit alive,” they operated at the Republican Party’s fringes.
Senate Republicans sent Barry Goldwater to inform him of the inevitability of impeachment. When Nixon asked Goldwater how many votes he had, Goldwater reportedly replied, “Ten at most, maybe less.” Two days later, Nixon resigned.
The stability of the period between the end of Reconstruction and the 1980s was rooted in an original sin: the Compromise of 1877 and its aftermath, which permitted the de-democratization of the South and the consolidation of Jim Crow.
Southern Democrats’ ideological proximity to conservative Republicans reduced polarization and facilitated bipartisanship. But it did so at the great cost of keeping civil rights—and America’s full democratization—off the political agenda.
The process of racial inclusion that began after World War II and culminated in the 1964 Civil Rights Act and 1965 Voting Rights Act would, at long last, fully democratize the United States. But it would also polarize it, posing the greatest challenge to established forms of mutual toleration and forbearance since Reconstruction.
This is interesting framing. Puts it all on the issue of race
On March 16, 2016, President Barack Obama nominated appellate judge Merrick Garland to fill Scalia’s seat. No one doubted that Garland was a qualified candidate, and by all accounts he was an ideological moderate. But for the first time in American history, the U.S. Senate refused to even consider an elected president’s nominee for the Supreme Court.
Now, in a radical departure from historical precedent Senate Republicans denied the president’s authority to nominate a new justice. It was an extraordinary instance of norm breaking.
The GOP had trampled on a basic democratic norm—in effect, stealing a Supreme Court seat—and gotten away with it.
When Gingrich arrived in Washington in 1979, his vision of politics as warfare was at odds with that of the Republican leadership. House Minority Leader Bob Michel, an amiable figure who carpooled home to Illinois for congressional recesses with his Democratic colleague Dan Rostenkowski, was committed to abiding by established norms of civility and bipartisan cooperation. Gingrich rejected this approach as too “soft.” Winning a Republican majority, Gingrich believed, would require playing a harder form of politics.
Backed by a small but growing group of loyalists, Gingrich launched an insurgency aimed at instilling a more combative approach in the party.
In the early 1990s, Gingrich and his team distributed memos to Republican candidates instructing them to use certain negative words to describe Democrats, including pathetic, sick, bizarre, betray, antiflag, antifamily, and traitors. It was the beginning of a seismic shift in American politics.
Though few realized it at the time, Gingrich and his allies were on the cusp of a new wave of polarization rooted in growing public discontent, particularly among the Republican base. Gingrich didn’t create this polarization, but he was one of the first Republicans to exploit the shift in popular sentiment. And his leadership helped to establish “politics as warfare” as the GOP’s dominant strategy.
Gingrich transformed American politics from one in which people presume the good will of their opponents, even as they disagreed, into one in which people treated the people with whom they disagreed as bad and immoral.
Before the 1970s, the annual number of cloture motions filed to end Senate debate—a good indicator of a filibuster attempt—never exceeded seven; by 1993–94, the number had reached eighty.
In an act without precedent in U.S. history, House Republicans had politicized the impeachment process, downgrading it, in the words of congressional experts Thomas Mann and Norman Ornstein, to “just another weapon in the partisan wars.”
President Bush governed hard to the right, abandoning all pretense of bipartisanship on the counsel of his political advisor Karl Rove, who had concluded that the electorate was so polarized that Republicans could win by mobilizing their own base rather than seeking independent voters.
During the 110th Congress, the last of Bush’s presidency, the number of filibusters reached an all-time high of 139—nearly double that of even the Clinton years.
Under DeLay’s guidance, Texas Republicans drew up a redistricting plan designed to gerrymander African American and Latino voters into a small number of Democratic districts while adding Republican voters to the districts of white incumbent Democrats, thereby ensuring their defeat. The new map left six Democratic congressmen especially vulnerable. The plan was pure hardball. As one analyst posited, it “was as partisan as the Republicans thought the law would allow.”
The 2008 presidential election was a watershed moment in partisan intolerance. Through the right-wing media ecosystem—including Fox News, America’s most-watched cable news channel—Democratic presidential candidate Barack Obama was cast as Marxist, anti-American, and secretly Muslim.
The Fox News program Hannity & Colmes discussed the Ayers story in at least sixty-one different episodes during the 2008 campaign.
But what was especially troubling about the 2008 campaign is that the right-wing media’s rhetoric of intolerance was picked up by leading Republican politicians. Tom DeLay, for example, declared that “unless Obama proves me wrong, he’s a Marxist,” while Steve King, a Republican congressman from Iowa, called Obama “anti-American” and warned that he would lead America into “totalitarian dictatorship.”
The difference? The Tea Party questioned President Obama’s very right to be president.
Colorado representative Mike Coffman told supporters, “I do not know if Barack Obama was born in the United States of America….But I do know this, that in his heart, he’s not an American. He’s just not an American.” At least eighteen Republican senators and House members were called “birther enablers” because of their refusal to reject the myth. U.S. Senators Roy Blunt, James Inhofe, Richard Shelby, and David Vitter, former vice presidential candidate Sarah Palin, and 2012 presidential candidate Mike Huckabee all made statements endorsing or encouraging the birther campaign.
And when Obama’s certificate was made public in 2011, Trump suggested it was a forgery. Although Trump opted not to run against Obama in 2012, his high-profile questioning of President Obama’s nationality gained him media attention and endeared him to the Republicans’ Tea Party base. Intolerance was politically useful.
Such attacks have a long and dishonorable pedigree in American history. Henry Ford, Father Coughlin, and the John Birch Society all adopted similar language. But the challenges to Obama’s legitimacy were different in two important ways. First, they were not confined to the fringes, but rather accepted widely by Republican voters. According to a 2011 Fox News poll, 37 percent of Republicans believed that President Obama was not born in the United States, and 63 percent said they had some doubts about his origins. Forty-three percent of Republicans reported believing he was a Muslim in a CNN/ORC
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Second, unlike past episodes of extremism, this wave reached into the upper ranks of the Republican Party. With the exception of the McCarthy period, the two major parties had typically kept such intolerance of each other at the margins for more than a century.
In 2016, the Republican presidential nomination went to a birther, at a national party convention in which Republican leaders called their Democratic rival a criminal and led chants of “Lock her up.”
By the end of the Obama presidency, many Republicans embraced the view that their Democratic rivals were anti-American or posed a threat to the American way of life. This was dangerous territory.
The very first bill in front of the Senate in January 2009 was the innocuous Public Land Management Act—a bipartisan conservation measure to secure two million acres of wilderness in nine states. As if to send a message, the Republicans filibustered it.
A stunning 385 filibusters were initiated between 2007 and 2012—equal to the total number of filibusters in the seven decades between World War I and the end of the Reagan administration.
The Democrats responded with norm breaking of their own. In November 2013, Senate Democrats voted to eliminate the filibuster for most presidential nominations, including federal judicial (but not Supreme Court) nominees, a move so extreme it was widely referred to as the “nuclear option.”
President Obama also responded with norm breaking—in the form of unilateral executive actions. In October 2011, the president presented what would become his mantra for achieving policy goals: “We can’t wait for an increasingly dysfunctional Congress to do its job,” he told an audience in Nevada. “Whenever they won’t act, I will.”
The president’s actions were not out of constitutional bounds, but by acting unilaterally to achieve goals that had been blocked by Congress, President Obama violated the norm of forbearance.
In March 2015, the Republican Senate leadership publicly encouraged U.S. states to defy the president’s authority. In an op-ed in the Lexington Herald Leader, Mitch McConnell urged states to ignore Obama’s regulatory order limiting greenhouse gas emissions. It was a stunning undermining of federal authority.
Although a last-minute deal prevented a default, considerable damage had already been done. Markets responded badly, and Standard & Poor’s downgraded America’s credit rating for the first time in history.
March 2015 brought another unprecedented event, when Arkansas senator Tom Cotton and forty-six other Republican senators wrote an open letter to Iran’s leaders insisting that President Obama had no authority to negotiate a deal over Iran’s nuclear program.
Cotton and his allies had brazenly sought to undermine the authority of a sitting president.
third norm-breaking moment was the Senate’s refusal to take up President Obama’s 2016 nomination of Merrick Garland to the Supreme Court. It bears repeating that not once since Reconstruction had a president been denied the opportunity to fill a Supreme Court vacancy when he nominated someone before the election of his successor.
With tactics like these, the Republicans had begun to behave like an antisystem political party. By the end of the Obama presidency, democracy’s soft guardrails were becoming dangerously unmoored.
If, twenty-five years ago, someone had described to you a country in which candidates threatened to lock up their rivals, political opponents accused the government of stealing the election or establishing a dictatorship, and parties used their legislative majorities to impeach presidents and steal supreme court seats, you might have thought of Ecuador or Romania. You probably would not have thought of the United States.
Behind the unraveling of basic norms of mutual tolerance and forbearance lies a syndrome of intense partisan polarization. Although it began with the radicalization of the Republican Party, the consequences of this polarization have been felt through the entire American political system.
Government shutdowns, legislative hostage-taking, mid-decade redistricting, and the refusal to even consider Supreme Court no...
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