I'm reading the Economist article: Donald Trump taps Neil Gorsuch for the Supreme Court.

I don't understand the following statement:

With only a 52-to-48 edge, Republicans cannot rely on their majority to get Mr Gorsuch confirmed: Senate rules permit the minority party to wage a filibuster that only a 60-vote supermajority can quell.

So briefly, what is the rule of a filibuster, and how did it develop in the history? This sounds unbelievable for me who grew up in China. Because silence means agreement in most of the time. I also read some related questions but they are way too detailed. I'd like to know if there is any law that legitimizes this kind of rule, and how did it come out. Besides,

Mr Gorsuch also peppered the talk with contemporary culture, quoting David Foster Wallace and joking that the so-called “modern” rules of civil courts date back to 1938: “Maybe the only thing that really sounds new or modern after 70 years,” he said, “is Keith Richards of the Rolling Stones. Some might say he looks like he’s done some experimenting too.”

Anyone can show me some background? I can't get the point.

  • 2
    These are two unrelated questions. It would be better to post them separately.
    – user11810
    Feb 5, 2017 at 2:52
  • I'm unclear on what the question is here. Are you asking about the history of the Filibuster, or are you asking us to explain the comparison to Kieth Richards?
    – Publius
    Feb 5, 2017 at 2:57
  • The filibuster portion is a duplicate. It's not clear what you want to know from the second quote. Are you asking about Keith Richards? Or about the rules of civil courts dating to 1938? Or looking for more context from the quoted material?
    – Brythan
    Feb 5, 2017 at 3:04
  • Someone please say "nuclear option".
    – user2565
    Feb 5, 2017 at 19:58

2 Answers 2


Keith Richards, born in 1943 is 73 years old and has been regarded as "modern" because of the music group The Rolling Stones which was formed in 1962. This was a sarcastic reference to "modern" jurisprudence (1938).

Wikipedia says that the filibuster in the United States Senate is a Senate rule that allows a senator to talk as long as he does not give up the floor, unless a special vote is taken to stop debate.

Note that the Democrats forced a rule change in order to prevent a filibuster on certain kinds of votes

Reconciliation is a specific process of passing a budget bill and, as a result cannot be filibustered by the Senate.

and from wikipedia:

After a series of filibusters in the 1960s over civil rights legislation, the Senate put a "two-track system" into place in the early 1970s under the leadership of Majority Leader Mike Mansfield and Majority Whip Robert Byrd. Before this system was introduced, a filibuster would stop the Senate from moving on to any other legislative activity. Tracking allows the majority leader—with unanimous consent or the agreement of the minority leader—to have more than one bill pending on the floor as unfinished business. Under the two-track system, the Senate can have two or more pieces of legislation pending on the floor simultaneously by designating specific periods during the day when each one will be considered.

In 1975, the Democratic-controlled Senate[6] revised the cloture rule so that three-fifths of sworn senators could limit debate, except on votes to change Senate rules, which required a two-thirds majority to invoke cloture. The Senate also experimented with a rule that removed the need to speak on the floor in order to filibuster (a "talking filibuster"), thus allowing for "virtual filibusters".

Another tactic, the post-cloture filibuster—which used points of order to delay legislation because they were not counted as part of the limited time allowed for debate—was rendered ineffective by a rule change in 1979

On November 21, 2013, the Senate used the so-called "nuclear option", voting 52-48—with all Republicans and three Democrats voting against—to eliminate the use of the filibuster on executive branch nominees and judicial nominees, except to the Supreme Court.

The wikipedia summary is:

A filibuster in the United States Senate is a dilatory or obstructive tactic used in the United States Senate to prevent a measure from being brought to a vote. The most common form of filibuster occurs when a senator attempts to delay or block a vote on a bill by extending debate on the measure. The Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (usually 60 out of 100) bring the debate to a close by invoking cloture under Senate Rule XXII.

According to the Supreme Court's ruling in United States v. Ballin (1892), Senate rules can be changed by a simple majority vote. Nevertheless, under current Senate rules, a rule change could itself be filibustered, requiring two-thirds of senators who are present and voting to end debate. (This differs from the usual requirement for three-fifths of sworn senators.)PRECEDENCE OF MOTIONS Despite this written requirement, the Senate's presiding officer could, on motion, declare a Senate rule unconstitutional, and that decision could be upheld by a simple majority vote.

The concept of the filibuster emerged in the Senate in the 1850s. At the time, both the Senate and the House of Representatives allowed filibusters as a way to prevent a vote from taking place. Subsequent revisions to House rules limited filibuster privileges in that chamber, but the Senate continues to allow the tactic.Filibuster and Cloture


I would also like to add to @sabbahillel's answer that when the Democrats last controlled the Senate, they changed the Senate rules and eliminated the filibuster on Federal Judge appointments to make it easier for the Senate to approve the appointments of the Obama administration. So it would be a logical extension of that decision for the GOP to respond in kind by eliminating the filibuster on SCOTUS nominees. Especially when one takes into consideration that a 4-4 SCOTUS tie leaves the Federal Circuit Appellate Court's decision in place.

Also, I believe there is no filibuster available for tax and budget bills that go through the process called reconciliation with the House.

  • @PoloHoleSet Reconciliation is a specific process of passing a budget bill and, cannot be filibustered. Thus, to be part of reconciliation, it must contain budget items. Feb 7, 2017 at 16:10
  • @sabbahillel - you are correct, thank you. I always thought of the "Conference Committee" where differences between bills are reconciled to also be "reconciliation," though it appears that is not the formal name. In any case, it looks like my initial comment is wildly inaccurate, so I'm removing it. Feb 7, 2017 at 17:03

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