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Filibuster Update



Last week, our editor commented on the misleading "Constitution-In-Exile" theory, recently propounded by the New York Times. Those who have been following the increasingly heated wrangling over confirmations in the Senate know that the battle is just beginning. Today, Senate majority leader Bill Frist offered a compromise measure wherein the Judiciary Committee would, now and in the future, permit nominees to go to the floor of the Senate, and ensure that any nomination could be debated for up to 100 hours, but that thereafter a majority vote could end debate. (Frist had previously rejected a Democrat compromise offered by Minority Leader Reid -- effectively, that the Dems would permit two of seven obstructed nominees to pass in the Senate if the Republicans agreed to permit the remainder, and potentially more nominees in the future, be subject to the filibuster.)

There seems to be little room for compromise. Senate Democrats rightly note that, in effect, Frist's compromise is little more than the "nuclear" (or "constitutional") option, with a guarantee for a lot of debate. The promise that a nominee can get out of committee means little to Democrats now, when Republicans have control, and there's no guarantee that the GOP would hold to that commitment down the road (any more than Democrats like Barbara Boxer have held to their previous opposition to the filibuster when they were in charge -- though Boxer's not generally one for consistency).

Of course, Frist gains a significant rhetorical upper hand with this move -- since the filibuster is really a "debating" rule, ensuring full discussion in the body, the 100 hour rule would seem to give everyone quite a say (even windbag Senators can probably keep their comments to an hour...).

Frist's approach, for instance, effectively rebuts much of the rhetoric issued today by Al Gore, about the importance of "deliberative democracy" and the Senate's role as "the more reflective body of Congress." I note that Gore seems confused when he asserts, "Our founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that was needed to safeguard the nation against unwise choices by a partisan president, they might well have given the House as well as the Senate the power to vote on judges." A bicameral approval process would make it more, not less, difficult to approve judges. Gore's quite right that the Senate was the more deliberative body -- both because of six-year election cycles and, as he fails to mention, because Senators were not popularly elected. But the constitution does not require a two-thirds (or 60%) vote for the Senate's "consent," as the Constitution explicitly does elsewhere, so it's pretty difficult to argue with a straight face that a Senate supermajority requirement has any constitutional foundation tracing back to the Founders.

(Then again, Gore also claimed that strict constructionist judges, preferred by Bush, would bring back the "three-fifths rule," so nuance in constitutional argument isn't really his forte.)

I will note that Gore make a reasonable point when he argues that controversial decisions -- like Bush v. Gore -- would be viewed as less legitimate if "the majority . . . had not only all been nominated to the court by a Republican president, but had also been confirmed by only Republican senators in party-line votes." That's a policy argument, not a constitutional one, but it shouldn't be wholly brushed aside.

There are strong arguments against scrapping the filibuster, like that raised this week by Cato's David Boaz in the American Spectator.

In the context of presidential appointments, I for one am not convinced. Minority protections are key -- and the filibuster acting as a supermajority requirement and a slowdown for change in the normal legislative process may make some sense. There are plenty of places in our constitution in which supermajority requirements erect structural protections for the minority (e.g., the bicameral structure itself for normal legislation, the Senate's disproportionate representation to protect smaller states, the veto power). Other "extra-constitutional" anti-majoritarian measures -- such as committee structures and the filibuster -- are far less persuasive to me as protectors of the minority's interests: indeed, racist Senators (like Robert Byrd), primarily from the South, took advantage of precisely these tools to obstruct for years legislation designed to disenfranchise blacks. Fortunately, the confirmation process was much less controversial in days gone by, or you can bet that these same Senators would have filibustered judicial appointees in an effort to frustrate Brown v. Board.

Moreover, filling appointments is essential to the business of government, and presidents should, in general, be given broad deference. This principle applies much less for the judiciary, where appointments are for a lifetime, than for presidents' own administrations, where appointees are there to execute presidential policy (see, e.g., John Bolton). But allowing a minority party to hijack a president's judicial appointees -- either in committee or through a filibuster -- can have a dramatic impact on the judiciary branch's capacity to do its job. There's a real separation of powers aspect to this debate that gets left out of this discussion. I know firsthand, from having clerked for the then-Chief Judge of the Second Circuit, how the court was overburdened when Republicans stonewalled Clinton's appointments to that bench.

The Founders knew how to put supermajority requirements into place, and did so. They didn't for the Senate's advice and consent power. It will be interesting to see what becomes of this peculiar "traditional" procedure...

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.