Joe Biden Now: The Filibuster Is a ‘Jim Crow Relic.’ Joe Biden Then: The Filibuster Is about ‘Integrity’ and ‘Fair Play’

Prompted by a questioner at today’s press conference, Joe Biden agreed with his party’s current talking point that the filibuster is a “relic of Jim Crow.” That is, however, not the tune Biden was singing for years and years and years and years and years in the United States Senate. “The Senate,” Biden said back then, “ought not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment.”

How did Biden talk about the filibuster in 2005? “At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation. That is why the Founders put unlimited debate in. That is what it is about, engendering compromise and moderation.”

Well, so much for compromise or moderation. More from Biden in 2005, on a Republican “nuclear- option” proposal — never adopted until the Democrats passed it in 2013 — to abolish the filibuster for appellate-court nominations, in which Biden described the filibuster not as racist but as essential to “America’s sense of fair play,” and he prayed that Democrats would not engage in a similar “naked power grab”:

Isn’t what is really going on here that the majority does not want to hear what others have to say, even if it is the truth? Senator Moynihan, my good friend who I served with for years, said: You are entitled to your own opinion but not your own facts.

The nuclear option abandons America’s sense of fair play. It is the one thing this country stands for: Not tilting the playing field on the side of those who control and own the field.

I say to my friends on the Republican side: You may own the field right now, but you won’t own it forever. I pray God when the Democrats take back control, we don’t make the kind of naked power grab you are doing. But I am afraid you will teach my new colleagues the wrong lessons.

We are the only Senate in the Senate as temporary custodians of the Senate. The Senate will go on. Mark my words, history will judge this Republican majority harshly, if it makes this catastrophic move.

By Biden’s own admission, he was a skeptic of the filibuster when he came to the Senate in 1973, but grew to appreciate it during the 1975 fight to change it, which lowered the cloture threshold from 67 votes to 60. Instead, he came to see the filibuster as essential to “the integrity of the Senate”:

The fight over the nuclear option is not just about the procedure for confirming judges. It is also, fundamentally, about the integrity of the Senate. Put simply, the ‘‘nuclear option’’ changes the rules midstream. Once the Senate starts changing the rules outside of its own rules, which is what the nuclear option does, there is nothing to stop a temporary majority from doing so whenever a particular rule would pose an obstacle. . . . Adopting the ‘‘nuclear option’’ would send a terrible message about the malleability of Senate rules. No longer would they be the framework that each party works within. I’ve been in the Senate for a long time, and there are plenty of times I would have loved to change this rule or that rule to pass a bill or to confirm a nominee I felt strongly about. But I didn’t, and it was understood that the option of doing so just wasn’t on the table. You fought political battles; you fought hard; but you fought them within the strictures and requirements of the Senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain. Adopting the ‘‘nuclear option’’ would change this fundamental understanding and unbroken practice of  what the Senate is all about. Senators would start thinking about changing other rules when they became ‘‘inconvienent.’’ Instead of two-thirds of the vote to change a rule, you’d now have precedent that it only takes a bare majority. Altering Senate rules to help in one political fight or another could become standard operating procedure, which, in my view, would be disastrous. . . . Just as the struggle over the ‘‘nuclear option’’ is about constitutional law and Senate history, it is also about something much more simple and fundamental—playing by the rules . . .

In 1975, I was part of a bipartisan effort to lower the threshold for cloture from two-thirds to three-fifths. Many of us were reacting against the filibustering for so many years of vital civil rights legislation. Civil rights is an issue I feel passionately about and was a strong impetus for me seeking public office in the first place. Don’t get me wrong—I was not calling the shots back in 1975; I was a junior Senator having been in the chamber for only 2 years. But I will make no bones about it— for about two weeks in 1975—I was part of a slim bipartisan majority that supported jettisoning established Senate rules and ending debate on a rules change by a simple majority. The rule change on the table in 1975 was not to eliminate the filibuster in its entirety, which is what the current ‘‘nuclear option’’ would do for judicial nominations; rather it was to change  from the then-existing two-thirds cloture requirement to three-fifths. It was a change in degree, not a fundamental restructuring of the Senate to completely do away with minority rights. The rule change was also attempted at the beginning of the Senate session and applied across the board, as opposed to the change currently on the table, brought up mid-session concerning only a very small subset of the Senate’s business. Nonetheless, my decision to support cutting off debate on a rules change by a simple majority vote was misguided… For me, the lesson from my 1975 experience, which I believe strongly applies to the dispute today, is that the Senate ought not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment . . .

The Framers created the Senate as a unique legislative body designed to protect against the excesses of any temporary majority, including with respect to judicial nominations; and they left all of us the responsibility of guaranteeing an independent Federal judiciary, one price of which is that it sometimes reaches results Senators do not like. It is up to us to preserve these precious guarantees. Our history, our American sense of fair play, and our Constitution demand it.

As it turned out, in the area of judicial nominations, Harry Reid later ignored Biden’s advice, and Republicans retaliated in kind, finishing off what remained of the judicial filibuster in 2017. Biden’s words in 2005, which were aimed at the filibuster in general (as evidenced by his references to 1975), were wise and eloquent, but they were also convenient to the moment. Now that they are inconvenient, Biden is all too ready to change his tune under pressure from his party.