Legal Affairs Debate Club

DEBATE CLUB 1/31/05

Filibusted? Erwin Chemerinsky and Steven S. Smith debate. This Week's Entries: Monday \| Tuesday \| Wednesday \| Thursday \| Friday In President Bush's first term, Democratic senators used filibusters to block 10 of the president's 229 judicial nominees. With a parade of nominations expected—to the Supreme Court and the rest of the federal bench—Senate Republicans are looking for ways to thwart the Democrat's filibuster options. Breaking a filibuster normally requires 60 votes, which is five more than the current Republican majority. But if Vice President Dick Cheney, the chamber's presiding officer, chose to ban the use of the filibuster, confirmation could well proceed with a simple majority vote. The filibuster has a long, if not always proud, history. Should the maneuver be banned from the Senate? Erwin Chemerinsky is Alston & Bird Professor of Law at Duke University School of Law. Steven S. Smith is Kate M. Gregg Professor of Social Sciences, Director of the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis.
Chemerinsky: 1/31/05, 09:42 AM As you know, Steve, the filibuster, which allows 40 Senators to keep the Senate from ending debate, has existed as part of the Senate's rules since the first days of the Senate. Without the filibuster, 51 Senators reflecting a relatively small percentage of the country's population can pass anything. In the new Congress, for example, the 45 Democratic Senators represent a majority of the population in the country. The filibuster is a way of making sure that the minority's will does not trump the majority's. Also, the filibuster has been a key check in a constitutional system that is all about checks and balances. Without the filibuster, there is no limit at all on the ability of the President to put anyone he wants on the Supreme Court, no matter how extreme the individual's views. Republicans contend that the filibuster for judicial nominations is illegitimate obstructionism. But this ignores that Republicans, too, have used the filibuster for judicial nominations when they were the minority party. In October 1968, Republican Senator Strom Thurmond led a successful filibuster preventing the confirmation of Abe Fortas as Chief Justice and Homer Thornberry as Associate Justice on the grounds that a lame duck President should not fill Supreme Court vacancies. At the beginning of the Clinton presidency, Republicans successfully filibustered Henry Foster to prevent his serving as Surgeon General. The Republican claim that the Democrats have used the filibuster in an obstructionist manner is disingenuous. In President Bush's first term, the Senate confirmed 219 of his judicial nominations, and Democrats blocked 10 judicial nominees by filibustering. While Republicans are unhappy with this, it is among the highest success rates for a president's judicial nominations—more than 90%—in American history. Republicans want to go further by giving President Bush the unique legacy of 100% success in appointing lower court judges and Supreme Court justices. In an exercise of raw power, Senate Republicans are attempting to eliminate the filibuster for judicial nominations but without following the rules for changing the Senate's rules. The elimination of the filibuster for judicial nominations is unjustified and illegitimate. The Senate allows its rules to be changed by a two-thirds vote of the Senate. Since they do not have enough votes to do this, Republicans want to eliminate the filibuster in a different, illegitimate way. The "nuclear option" entails a series of procedural moves on the Senate floor culminating in a ruling by the Presiding Officer—Vice-President Cheney—declaring unconstitutional filibusters of judicial nominations. While Democrats may appeal the Presiding Officer's ruling to the full Senate, only 51 votes are needed to uphold the ruling. With 55 current members, Republicans believe they have the numbers to uphold the ruling and prevent further filibusters of any judicial nominations. Once this so-called "nuclear option" is used, the Senate, as it has operated for over 200 years, will cease to be. There will be no turning back. The filibuster has had the salutary effect of encouraging compromise on divisive subjects, but without it a majority would have no incentive to take minority interests into account. It will also have the power to change the rules to suit its needs. The Senate would become permanently trapped in a vicious cycle of payback. Whatever good will is left between the parties will be lost, not to mention the integrity and sanctity of the Senate rules. The major problem with the nuclear option is that it is a cynical exercise of raw power and not based on constitutional principle or precedent. There is no precedent for amending Senate rules without following the rules. Whenever the Senate has amended its rules it has done so in accordance with its rules.

	Smith: 1/31/05, 02:39 PM Erwin, I disagree with your premise. You imply that the filibuster exists to serve noble purposes. To rephrase, the filibuster (a) prevents senators representing a small part of the American people from dictating policy to a majority of the people and (b) raises the barrier against a president who otherwise might find it easy to win a Senate majority for Supreme Court nominees. The filibuster exists because the Senate failed to include a motion on the previous question in its rules when those rules were codified for the first time in 1806. As far as we can tell, this was more of an accident than anything else. "Theories of the Senate," including Johnn C. Calhoun's concurrent majorities, arose over the course of the 19th century about why the Senate lacked a limit on debate, but all of this was a rationalization for a thoughtless act in 1806. With that move, the Senate did not have a rule to limit debate and waited until 1917 to get the cloture rule—Rule 22—in place. A majority of senators appear to have favored simple-majority cloture in 1917 and at other times, but obstructionists prevented a rule providing for a lower threshold from coming to a vote. In subsequent posts, I will agree with you that the nuclear option should be avoided. However, the parliamentary technique has been used before on more minor matters. It is the balance of terror, as you suggest, that keeps it from being used more widely. The root cause of Senate's predicament is the incompatibility of the super-majority requirement for closing debate and the simple-majority requirement for many other motions—final passage, the motion to table, etc. The Senate majority plainly can do what has been proposed, but it should not do so. Reading high constitutional principle into the filibuster and Rule 22 is unwise. To be sure, principle is articulated by senators in its defense; a few senators actually believe it. But brass-knuckle politics, not Senate representation or separation of powers, explain it. And self-serving senatorial interests, not constitutional principle, will save it, if it is saved.

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Chemerinsky: 2/1/05, 09:25 AM The Supreme Court often has declared that history has placed a gloss on the Constitution. A long, unbroken tradition has been deemed crucial in constitutional interpretation. In fact, in McCulloch v. Maryland, the Supreme Court said that the existence of the prior national bank, from 1790-1811, was a strong basis for concluding that the newly created bank was constitutional. Steve, you attempt to undermine the legitimacy of the filibuster by claiming that it was a result of an accident in 1806. To the contrary, the first recorded episode of dilatory debate occurred in 1790, when Senators from Virginia and South Carolina filibustered to prevent the location of the first Congress in Philadelphia. The modern filibuster really traces its origins to the 1820s and it was not until 1856 that the Senate adopted formal rules for unlimited debate and the filibuster. You fail to dispute that the filibuster has persisted—and continues to exist—because it serves important functions. First, it is an additional check in a system that highly values checks and balances. Under the Constitution, there are many instances where the Senate alone acts for Congress, such as in approving nominations of judges and other executive officials. Without the filibuster, there would be virtually no check on a President when Congress is controlled by his party. Now, for example, without the filibuster there would be no check on whom the President could put on the Supreme Court or lower federal courts. Second, the filibuster can serve as an important limit on the ability of the minority to impose its will. Because every state, regardless of population, has two senators, Senators reflecting a minority of the population can act. In fact, Senators representing less than a third of the country can be a majority of the Senate. The filibuster counters this by allowing those representing the majority to prevent action. Simply, Steve fails to justify eliminating or even substantially limiting the filibuster.

	Smith: 2/1/05, 02:26 PM Erwin, I think you have shifted ground by defending the filibuster rather than evaluating the proposed means for limiting debate by the nuclear option. Let me address your historical point and then return to the nuclear option. I grant that you, and many senators since the 1830s, are skilled at identifying functions for extended debate in the Senate, but you cannot find justification for extended debate in the debates over the Constitution (there is no mention of distinctive Senate rules in the Federalist Papers, for example). And there was no discussion of extended debate when the Senate first codified its scattered rules in 1806. Dilatory action was not a worry in 1806. As you point out, dilatory actions soon became a problem and senators then realized that they lacked the means for limiting debate. Before the Civil War, when the Senate's tradition is said to have formed, Cass, Clay, Douglas, and other prominent senators favored debate limits but were blocked by obstructionists. The pattern continued after the war when Aldrich, Allison, Anthony, Lodge, and many others favored debate limits. The 1806 decision put the Senate on a path that allowed minorities to block future changes in the rules, including proposals to limit debate, even when the great debaters wanted limits. The filibuster has a long history, to be sure, but its central role in Senate history does not represent the Framers' intent, the views of senators in the early Congresses, or the wishes of many, if not most, of the prominent senators during the 19th century when obstructionism became a recognized problem. My view of the nuclear option: The nuclear option—forcing a new precedent limiting debate on judicial nominations—is allowed under Senate rules and has precedent, but it cannot be justified on the constitutional grounds that have been mentioned in press accounts. Moreover, the nuclear option is bad for the Senate and not in the public interest. Still, I favor reforming Rule 22 along the lines that Senators Harkin, Leiberman, Frist, Dole, and others have advocated. Their proposal is to reduce the threshold for cloture in increments from 60 to 51 over many days of debate on the underlying motion. I'll use my next two posts to criticize the nuclear option and defend reform of Rule 22.

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Chemerinsky: 2/2/05, 08:00 AM I think that we are debating several points and we need to clarify them. First, is the filibuster constitutional? Your last post argued "that you cannot find justification for extended debate in the debates over the Constitution (there is no mention of distinctive Senate rules in the Federalist Papers, for example)." But you are attacking a strawman: I never made an argument that the filibuster was legitimate based on the framers intent. Nor do I believe that the framers' intent is any more affirmative here than in any other area of constitutional law. I do not understand you to be arguing that the filibuster is unconstitutional. If this is your point, you need to defend that and haven't done so. I think it would be very difficult to reconcile that view with a constitutional provision that expressly allows the Senate to make its own rules. Also, the Court long has said that history has placed a gloss on the Constitution and that a practice which has long existed has a strong presumption of constitutionality. This is certainly true of the filibuster. Second, is the filibuster desirable? Should it be eliminated entirely or substantially? Steve you favor the " proposal . . . to reduce the threshold for cloture in increments from 60 to 51 over many days of debate on the underlying motion." I very much disagree for the reasons I expressed in earlier posts. I think that the filibuster is a desirable check in a system that is based on checks and balances. The reality is that if this reform were implemented, President Bush could have confirmed virtually anyone he wants for the Supreme Court or lower federal courts. For any President, this is a very frightening prospect, but it is especially so for a President who has shown a penchant for nominating judges from the far right wing of the Republican party. My argument, though, would be the same whether the President is Democratic or Republican: The filibuster is a desirable check. Also, as I explained earlier, the filibuster is desirable in countering the anti-majoritarian nature of the Senate. Third, if the filibuster is changed, should this be through the "nuclear option." I think we agree on this one: the nuclear option should not be used. I do not believe it is a permissible way of changing the Senate's rules. The Senate's rules prescribe the method for such changes. If this rule can be changed without following those rules, any rule can be altered in this way. Never in American history has the Senate changed its rules without following the rules. I hope this helps in clarifying the issues, if nothing else so we can be clearer about where we agree and disagree.

	Smith: 2/2/05, 01:09 PM Erwin, let me give a little more detail on the nuclear option. The parliamentary move threatened by Senator Frist would work something like this: A Republican would make a point of order that the Constitution's "advise and consent" clause implies an obligation on the Senate to vote on judicial nominations. The presiding officer, potentially the Vice President, would rule in favor of the point of order. When appealed to the Senate—a motion that is debatable under Senate rules—a motion to table would be advanced by Republicans to quash the appeal and sustain the ruling. Motions to table cannot be filibustered, which means that a simply majority could table the appeal and uphold the ruling. The result would be majority cloture by fiat of a simple majority, at least for the range of matters addressed in the ruling. Democrats argue that this route to reform is inconsistent with Rule 22, which already addresses the threshold for cloture on measures affecting Senate rules. Moreover, they insist, precedent requires the presiding officer to submit a point of order that raises constitutional questions to the Senate for decision without ruling on the matter; with no ruling, there would be no appeal that could be set aside by a non-debatable motion to table. These arguments might be backed by the Senate's parliamentarian, whose advice probably would be set aside by the presiding officer in maneuvers that would be orchestrated with the majority leader. Republicans say they will restrict the new precedent to judicial nominations. That's absurd. If the Constitution implies a Senate obligation to vote on judicial nominations, then it implies a Senate obligation to vote on all matters explicitly mentioned in the Constitution's two "advice and consent" clauses—all presidential nominations and treaties (what the Senate calls "executive business"). Choosing to limit the ruling to judicial nominations guarantees that in the very near future senators will attempt to extend the precedent to all executive business. The reform-by-ruling approach is not likely to be limited to procedural matters arising under express provisions of the Constitution. The track record of the Senate on other procedural rulings suggests that majorities will be enticed to ease down the slippery slope of reform-by-fiat to rules that implicate the Constitution only remotely. All bets are off once the Senate accepts the nuclear option mechanism. In fact, there are precedents for the Republican parliamentary move, as they will note. Former Republican floor staffer Marty Gold and a colleague will soon publish a piece in the Harvard Journal of Law & Public Policy that details a few instances on more minor matters in which Democrats forced new precedents, even undermining explicit Senate rules, using the same technique. Gold, ever the salesman, calls the technique the "constitutional option." Cute. But Gold is right about key precedents. The Senate's rules allow abuse because they both provide for super-majority cloture and for simple-majority mechanisms that allow circumventing of the cloture rule. The minority party is not helpless. Democrats can filibuster any other debatable measure in anticipation of a Republican move to bring up a controversial judicial nomination. They can object to routine unanimous consent requests—forcing the majority to secure 60 votes to impose cloture—and can slow down Senate action on all matters. This is a Senate with 45 Howard Metzenbaums, a majority leader's worst nightmare. Would a minority party engage in such massive retaliation? So far, majority leaders have resisted the temptation to find out by taking the nuclear option. For the sake of all of us, I hope they don't push the button.

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Chemerinsky: 2/3/05, 09:23 AM

	Smith: 2/3/05, 09:23 AM Erwin, over the first three days you have made only two arguments for the filibuster and, I guess, against reducing the threshold for cloture. First, the filibuster protects populous states against a possible majority coalition of senators from small states. Second, the high threshold makes it more difficult for the president to win Senate confirmation of judicial nominees —"without the filibuster there would be no check on whom the president could put of the Supreme Court or the lower courts." The super-majority threshold for cloture makes it more difficult for any simple majority to get a vote in the Senate. Historically, small-state senators have argued that the high threshold helps them protect their states against the more populous states that might dominate presidential elections and the House of Representatives. Calhoun and southerners generally made the small-state case in the antebellum period; Alaska's Ted Stevens makes the case today. Erwin, in the context many decades of debates about cloture, your emphasis on protecting majority interests with a super-majority cloture threshold is novel. In principle, it could work out that way. In fact, there is evidence of a small-state bias in Senate pork-barrel politics. Thus, in everyday politics, small states are winning anyway because of the equality of state representation in the chamber, filibuster or not. In practice, protecting popular majorities against minorities isn't much of an issue. In actual Senate voting on reform proposals over the decades, there isn't a relationship between state size and support for filibuster reform. Other interests, such as majority/minority status and Northern/Southern interests, have driven evaluations of the filibuster. Your argument is not likely to resonate with those who matter—senators. In making the check-on-the-president argument, you are asserting that the checks built into the Constitution are inadequate and that the Senate must add to the Framer's advice-and-consent scheme. The Framer's provided for a two-thirds majority for consenting to treaties, but somehow overlooked that special threshold for nominations. The Framer's thought they had a check, majority approval, but you seem to think that's no check at all. Why were the Framer's wrong? Obviously, the filibuster raises the threshold for a president seeking confirmation of a judicial nominee, but it also does so for a president seeking passage of a civil rights bill, an anti-lynching bill, a voting rights bill, a consumer protection bill, and so on. As this very partial listing suggests, the filibuster has been used far more frequently to block new policy initiatives that threatened the interests of a sizable minority than it has for nominations or other matters related to the Senate's advice-and-consent function. Weighing the costs and benefits of a high cloture threshold is not easy. Personally, I would take a Bush appeals court nominee today if it meant that we could have had meaningful civil rights legislation at an earlier date. I am curious, Erwin, would you favor increasing the threshold for cloture on the basis of your arguments? I doubt it. In fact, stronger arguments in defense of a high or higher threshold for cloture concern the maintenance of the Senate's deliberative character, protecting individual and minority (not majority) rights, and moderating legislation. Sarah Binder and I addressed these in Politics or Principle and I will not be able to address them in this exchange. But I will rehearse the case for filibuster reform (by traditional means) tomorrow.

Chemerinsky: 2/3/05, 01:48 PM I have much enjoyed this exchange, Steve. To conclude, I'd focus on a couple of key questions: First, should the filibuster be eliminated? Second, if so, should the Senate rules be changed via the nuclear option? First, it must be noted that the context of the nuclear proposal is to keep Senate Democrats from blocking very conservative Bush nominees to the Supreme Court and the federal courts. This is not, as you assert, about getting civil rights legislation through the Senate. I only wish that the current Senate were willing to consider additional civil rights legislation. That just isn't the context of the current proposal. The reality is that without the filibuster, George Bush could put virtually anyone of the Supreme Court, no matter how conservative. The reality is that Republicans often used the filibuster and other anti-majoritarian techniques to block Democratic nominees. Republicans successfully filibustered Henry Foster from being Surgeon General during the Clinton presidency. In 1968, Republican Senator Strom Thurmond successfully filibustered the nominations of Abe Fortas to be Chief Justice and Homer Thornberry for Associate Justice. From 1995-2000, Republicans blocked one third of Clinton's picks for the federal appellate courts from even getting voted on. It is disingenuous and wrong for Republicans now to try and eliminate the filibuster to get Bush's picks on the courts without checks. On the merits, filibusters serve important purposes. They promote majoritarianism by keeping a majority of Senators from small states from adopting legislation. Steve says this rarely happens, but he offers no support for that assertion. Filibusters also are a key check in a system that highly values checks and balances. Indeed, George Will said exactly this: "The filibuster is an important defense to minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the government juggernaut." Steve says that the filibuster can be used to stop good legislation as well as bad results. Of course, this is true. But at this point in time, eliminating the filibuster would serve one purpose: letting Bush put whoever he wants on the courts and the elimination of the check the filibuster provides is not desirable. The filibuster has existed since the earliest days of American history. Those who wish to eliminate a practice after 200 years have a heavy burden to meet and Steve has not done so. The second issue is whether the nuclear option should be used. Here, Steve and I agree: the nuclear option would be undesirable. If the Senate's rules are to be changed, it should be in accord with the Senate's rules. Never in American history has the Senate changed its rules without doing so. If the Senate can change this rule without following its rules, it could do this any time. The very nature of the Senate as an institution would be altered. The context of this debate cannot be ignored. During his first term, President Bush had over 230 nominees for federal courts confirmed and 10 blocked by filibuster. Should a practice that has been followed for over 200 years be changed solely to get a handful of extremely conservative nominees confirmed? I think that the answer is clear. The filibuster is a key part of American government and if it is to be changed, it should be by a proper rule change not the nuclear option.

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	Smith: 2/4/05, 09:24 AM Choosing rules involves balancing competing values. As Erwin and I do, we should ignore short-term partisan implications and weigh other things we value—deliberation, educating the public, minority rights, speed, accountability, decisiveness, and so on—when evaluating the cloture threshold. I favor a different balance than we have now. The current balance is undesirable because: 1. Super-majority cloture prevents a majority from enacting legislation. The Constitution's safeguards (separation of powers, bicameralism) are sufficient and the Senate's current cloture threshold adds an unintended obstacle to the enactment of new policy. 2. Upon the foundation of the super-majority requirement of Rule 22, the Senate must cater to the most parochial interests in order to gain unanimous consent for modest limits on debate and amendments. 3. The necessary dependence on supermajorities and unanimous consent spawned "holds" or other practices that empower individuals and distort outcomes at the expense of majorities. 4. The filibuster blurs responsibility for legislative failure and undermines accountability to the electorate. On many occasions, the majority party has been blamed for inaction caused by minority obstructionism. The modern Senate recognizes that a different balance is required for much of its most important legislation—budget measures (including tax measures in recent Congresses), fast-track trade legislation, executive reorganization, and arms control and export—to name just a few measures for which the Senate has accepted strict limits on debate. To fail to do so for education, environmental, energy, welfare, or science legislation is hard to justify. The Harkin-Lieberman proposal—to ratchet down the threshold from 60 to 51 during an extended debate on a measure—offers a more appropriate balance, one that Senators Clay and Webster (but not Calhoun) would have endorsed. Is this going to happen? Not a chance. The minority's views on filibuster reform are quite predictable.

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