Biden’s belated filibuster decision: A pretense of principle at work

In a town hall event with CNN’s Don Lemon on Wednesday, President Biden delivered a blow to liberals and many in the media who have called for killing the Senate filibuster rule. Biden, for the first time as president, said he does not want to get rid of the filibuster.

That position was less surprising than the timing: This is the six-month mark of Biden’s inauguration, but he just got around to telling his party that he does not support efforts to kill the filibuster. It is a failure of leadership seen on a variety of issues, from Supreme Court packing to corporate censorship.

Biden was pressed by an audience member and then by Lemon on why he has not pushed to kill a rule denounced as a “relic of the Jim Crow period.” Putting aside the factual and historical errors, that claim has become a mantra for the Democratic Party over months of intense fights in Congress. While saying he would prefer to go back to the old rule of requiring members to “hold the floor” during filibusters, Biden suddenly said that killing the rule would “throw the entire Congress into chaos and nothing will get done. Nothing at all will get done. There’s a lot at stake. The most important one is the right to vote, that’s the single most important one.” (The concern for getting things done did not extend to tying to up the Senate in floor filibusters for days or weeks — a practice eliminated to allow for other work to be done.)

On CNN, in front an obviously liberal audience, Biden was unwilling to repeat what he previously said as a senator, that the loss of the filibuster would be “disastrous.” Back then, he dramatically proclaimed: “God save us from that fate … [it] would change this fundamental understanding and unbroken practice of what the Senate is all about.” His colleagues, including then-Sen. Barack Obama (D-Ill.) and now-Majority Leader Chuck Schumer (D-N.Y.), gave equally full-throated endorsements of the rule being denounced today as a thoroughly racist relic. 

Even this month, Democrats have heralded the Texas Democratic legislators who fled to Washington to stop any vote on election reforms — a type of flight filibuster. They were even praised by Kamala Harris for their “extraordinary courage and commitment.”

Why would Biden allow this issue to tie up the Senate (and so much media coverage) as he remained silent in the White House? Reporters have pushed for months to get an answer from him.

The answer is that political courage has never been Biden’s strong suit.

Thomas Jefferson once advised his successors that “on matters of style, swim with the current, on matters of principle, stand like a rock.” Biden has rarely found a rock worth standing on. Throughout his career, he has furiously crawled or backstroked from one side of the political pool to the other, depending on the current of public opinion.

When cracking down on crime was popular, Biden outdid his colleagues in rhetoric: “Every time Richard Nixon, when he was running in 1972, would say, ‘Law and order,’ the Democratic match or response was, ‘Law and order with justice’ — whatever that meant. And I would say, ‘Lock the S.O.B.s up.’ ” When busing was unpopular, Biden rushed to oppose it: “My children are going to grow up in a jungle, the jungle being a racial jungle with tensions built so high that it is going to explode at some point.”

Biden never claimed to be a man driven by principle. Indeed, it was strangely part of his charm. Many of us still liked him because at least he did not hide his political agenda or insult your intelligence with pretenses of principle; he was proud of being a political operator and treated high principles as bad politics.

Now, however, he is president and expected to be something more than a ward heeler with his own official seal and Marine band. It is a hard transition to make. Donald Trump showed the same difficulty in transitioning from reality-show host and real estate mogul into a president; it was one of the things that lost Trump many votes.

What constitutes a president is more than a pretense of principle or situational ethics. It is often said that “A politician thinks of the next election; a statesman, of the next generation.” Biden remains a politician. That was obvious during the 2020 campaign when he was asked for his position on court-packing: When court-packing was unpopular with his party, then-Sen. Biden eagerly denounced it as a “boneheaded” idea. Now, many on the left want to erase the Supreme Court’s conservative majority, so Candidate Biden refused to answer the question. In a breathtaking statement, he said he would not reveal his position on court-packing until after the election, despite the issue being one of the more prominent for voters; a cocoon of supporting media enabled him to shrug off a question of principle as a distraction to politics.

To this day, Biden has refused to state his position. Instead, he has created a lopsided commission to study court-packing and other radical proposals to “reform” the court, including creating a new court to deal solely with constitutional questions. The commission has lined up witnesses like Christopher Kang, co-founder and chief counsel of the pro-court-packing group Demand Justice, which has been criticized for an insulting billboard campaign to pressure Justice Stephen Breyer to retire. Many of the commission’s members and witnesses supported the court when it was adopting their interpretations of the Constitution — but now that a court majority disagrees with them, it must be packed or replaced. Others are challenging the very notion of “judicial review” as inimical to democracy; Nikolas Bowie, an assistant professor at Harvard Law School, labeled judicial review as an “antidemocratic superweapon” that should be curtailed in the name of justice and equity.

Most citizens consider such proposals as absurd. However, the commission is composed of members taken from law faculties that run from the left to the far left, who treat these proposals as perfectly sensible.

Biden knows this is utterly bonkers, but he lacks the political courage to stand up to the far left and say: “Enough! We are not going to pack the court to achieve an immediate liberal majority. We are not going to take an axe to judicial review to make Congress, rather than the courts, the final arbiters on legal questions.”

Unlike his senatorial self, Biden has now adopted the pretense of principle.

During CNN’s town hall, he again repeated his claim that “I’m trying to bring the country together.” But fostering these absurd debates is not bringing the country together; it is fueling divisions.

Presidents cannot always wait for the cover of commissions or the assurance of polls to act. In a country being torn apart by rage, we have a lot of politicians. What we need is a president. As Winston Churchill said, “The nation will find it very hard to look up to the leaders who are keeping their ears to the ground.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.