the United States government was set up by the founders to be inherently conservative, and the governance of the Senate has made it even more so. Passing a law requires a majority in one house, a supermajority in another house, consent of the president, and consent by the Supreme Court. Any of those four institutions can stop proposed legislation dead.
Schmitt rightly notes that the filibuster isn’t a requirement for a supermajority, but a requirement for the absence of a substantial and serious opposition. In principle, a bill can pass the Senate 51–50 if there are 50 senators who dislike the bill, but fewer than 40 who hate it.
The idea of the Senate was always that it be a place where things took longer, where the process was less democratic. That’s why it took a Constitutional amendment to have Senators elected by the popular vote, rather than via state legislatures.
The Senate’s undemocratic basis can be traced back to Aristotle’s notion of aristocracy as the form of government most likely to govern well. He felt that a benevolent monarch might govern best, but posed too great a danger of dictatorship; democracy could too easily turn to mob rule; aristocracy would balance the deliberative and moderating influence of democracy with the wisdom of a benevolent monarch.
If that’s true (and I’m no constitutional scholar) it raises an important question, especially for Constitutional Originalists. Did the 17th Amendment change that principle, and transform the senate from an aristocracy to a representative body no different from the House of Representatives? Should the Founder’s intention that the Senate be aristocrats be voided out given the democratic reform of the early 20th century, or was that an electoral reform without consequences for the nature of the Senate?
This is important because an aristocracy can be expected to govern by a system of consensus rather mere majoritarianism. Think of voting systems as a continuum. The idiocy of allowing a submajority to pass anything is obvious, since the law would just flip back and forth. That leaves a continuum of percentage needed to pass ranging from 50–100. The closer you get to 100% (ignoring abstentions), the closer you are to a pure consensus system, and the harder it is to pass anything the least bit controversial.
On the other hand, the closer you are to 50%, the easier it is to slip a controversial bill through. That’s fine in a democracy, though it brings you close to mob rule, especially in a representative system (minorities will be under-represented as representatives for statistical reasons). So a democratic body ought to tend toward a simple majority, while an aristocracy should tend towards consensus.
If the Senate is still meant to be the Founders’ a brilliant compromise of an elected aristocracy, it should strive for consensus, and require that there be no vigorous and numerous opposition. If it has been transformed into a representative body, it should hew closer to the simple majoritarian view, with minimal protections for the minority view.
In brief, the filibuster is a logical consequence of the principles which guided the creation of the Senate. The nature of the senate has shifted in the last century, and there is a basis for revising its operations, but due consideration should be given to the theoretical grounding of the filibuster as a force for consensus. Government by 50%+1 is mob rule, and the Senate is meant as the bulwark against that. It’s meant to be conservative, it’s meant to be undemocratic. It’s meant to prevent massive changes. A judge without even the grudging support of 60 senators doesn’t deserve a lifetime appointment. A bill that 40 Senators hate shouldn’t pass, but should be amended until a few of them can tolerate it.
As for a liberal defense of the filibuster, this ensures that the government never gets too far ahead of the people. The metric system is great. It’s logical, easy to do math with, and everyone uses it. But the public hates it. They hate it. Congress could require its use, but then the public will hate them. The same is true of any radical agenda. If 60 senators don’t support a radical change in the way things work, that change has a good chance of inspiring a backlash. That backlash could result in years of anti-liberal legislation, and a lasting antipathy to good ideas. The filibuster ensures that good ideas don’t arrive before their time.