Published Humanitas, Volume XXVII, Nos. 1 and 2, 2014

“In founding a system which we wish to last for ages, we shd. not lose sight of the changes which ages will produce.”

—James Madison (June 26, 1787)

A view common today in scholarly and popular circles is that the Senate is broken. This implies that it is no longer serving the function for which it was created. As evidence, proponents point to the excessive minority obstruction and resulting gridlock on the Senate floor. Responsibility is assigned to the endemic partisan and ideological polarization of the current environment. The result is that nothing gets done. Put simply, the Senate is broken because it is unable to pass important legislation.

These developments have led some scholars to argue that the contemporary Senate is an unproductive legislative body in need of reform precisely because it is unable expeditiously to confirm presidential nominations or approve public policies to address society’s most pressing problems. Reflecting mounting bipartisan frustration with these challenges, Senate Republicans tried, and failed, to eliminate the filibuster for judicial nominations in 2005 and Senate Democrats tried, and succeeded, to eliminate the super-majoritarian vote threshold for some judicial and all executive branch nominations in 2013. Both of these efforts were pursued by a “reform by ruling” approach (i.e., the nuclear option).

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