The Return of the Filibuster

Posted: May 20, 2011 10:09 AM
The Return of the Filibuster

On Thursday, May 19 Senate Republicans refused to vote for cloture in sufficient numbers to allow the Senate to move to the consideration of the nomination of Berkeley Law School Professor Goodwin Liu's nomination to became a judge on the United States Court of Appeals for the Ninth Circuit.

It takes 60 votes for a nomination to move to a final debate and vote up-or-down, and there were only 52 votes in favor of doing so with Liu. One Republican voted to move Liu's nomination along --Lisa Murkowski. One Democrat voted to block it --Ben Nelson. A number of Democrats took a pass on voting at all, perhaps because Professor Liu's liberal views and past verbal assaults on Republican nominees for the Supreme Court John Roberts and Samuel Alito are not the sort of burdens they want to carry in a re-election campaign.

The filibuster is back.

The presidency of George W. Bush was marked by the abuse of the judicial filibuster by Senate Democrats when they were in the minority. Vermont's radical and erratic Patrick Leahy used his position as ranking member of the Judiciary Committee to urge his liberal colleagues to embrace this most destructive, anti-majoritarian weapon, and they did so with zeal. Among the extraordinarily well qualified judicial nominees of President Bush who became permanent victims of the Democrats wielding the super-majority: Miguel Estrada, Carolyn Kuhl, Charles Pickering, William Myers and Henry Saad. Many other judicial nominees were filibustered for long periods of time but the Gang of 14 agreement forged in May of 2005 allowed for the confirmation of some of those who had been filibustered, like Janice Rogers Brown and William Pryor. The seven Senate Democrats and seven Senate Republicans who signed on to the agreement stipulated that judicial "[n]ominees should be filibustered only under extraordinary circumstances."

Filibusters of executive branch nominees are common and deeply rooted in modern American political history. But judicial nominees have always been treated differently and for very good reasons having chiefly to do with keeping the courts separate to some degree from the political wars. Until Democrats began to abuse the procedure in the Bush years, only one judicial nominee had ever been filibustered --Justice Abe Fortas when he was nominated to be Chief Justice of the Supreme Court, and that filibuster was bipartisan and proceeded from a concern over Fortas' ethics.

Until the Democrats began abusing the filibuster, no circuit court nominee had ever been filibustered. Until the block applied to Goodwin Liu yesterday, the GOP side of the aisle had never used the weapon against a circuit court nominee.

I discussed the filibuster with GOP Senate Leader Mitch McConnell on my radio show and the transcript of that conversation is here. Read the whole thing, but the key paragraphs are these:

HH: Is there a chance now to perhaps reopen that and get a rule that guarantees nominees an up or down?

MM: No, I don’t think so. I think we’ve moved on, and it’s interesting to note who would not have been on the Supreme Court if this had been the norm as recently as twenty years ago. Justice Clarence Thomas, who has been an outstanding Supreme Court judge, in my view, was confirmed only 52-48. And what that meant is not a single member of the Senate, even though 48 Senators were against Clarence Thomas, insisted on having a limitation on debate, in other words, insisted on having a cloture vote to shut down a filibuster. In fact, there was no filibuster. But the Senate, at various points in its history, has had different views over our two hundred years about how the confirmation process should be handled, and I think now it’s very clear that the filibuster will be employed from time to time when a nominee is extraordinarily unfit for the bench, and that’s what happened today.

HH: So if Senator Reid approached you and said Senator McConnell, let’s sit down and fix this, because extraordinary circumstances, that’s the standard in the Gang of 14, I don’t know if the standard you’re applying, it’s so malleable, it’s so subject to abuse, let’s get it fixed, you don’t think that could go anywhere right now?

MM: No, I don’t think so. I think the Senate has sort of settled into a new norm here, which is that hopefully filibusters won’t become a routine as they were ten years ago for President Bush, but they will be used from time to time by the minority, the current minority being Republicans, when we think it is appropriate.

This statement by the GOP Leader completes a major evolution in the rules of the Senate, and not one for the good. The "new norm," if it continues, guarantees terrible, bitter battles ahead and will discourage qualified nominees from considering the job. It is certainly understandable that the GOP simply cannot allow the circuit court nominees of its presidents to be routinely filibustered by Democrats without using the extraordinary power at least occasionally against Democratic presidents to demonstrate that every precedent works against both parties.

Not to use the filibuster on very liberal judges while Democrats blocked mainstream conservatives would be unilateral disarmament in the most important judicial-political battles of the day. It would also guarantee the long-term trend of the judiciary to extravagant activism as left-wing nominees sailed through and conservative nominees were blocked over decades of nominees. The standard cannot be 60 votes fro GOP nominees and 51 for Democratic nominees.

But having now established that what is indeed sauce for the GOP goose is sauce for the Democrat gander, the senior members of the Senate ought to meet to consider a formal rule change that will return the body to its long-established practice of giving all judicial nominees who emerge with a recommendation of confirmation from the Judiciary Committee an up-or-down vote. Leader McConnell has stated to me that this won't happen, but every negotiation worth happening begins with such a declaration.

It may be that the GOP needs to wield the judicial filibuster power once or twice more to even the score from the last decade, and perhaps even against a nominee for the Supreme Court who is outside the judicial mainstream.

But as President Obama's term comes to an end and before the results of the next election are known, it would be good for the courts, for the Senate and for the country if Patrick Leahy's monstrous innovation was stricken from the Senate's set of procedures.

In the decade-and-a-half that I have been teaching Constitutional Law at Chapman University Law School, judicial nominations went from dull affairs punctuated by rare bursts of great drama to a regular feature of the cable television wars. I have told the students that this guarantees a politicized judiciary and a bench of boring, middle-of-the-road time servers who avoid writing anything of interest or controversial content over their entire careers.

This evolution is not in the best interests of anyone, and perhaps the Senate can indeed pull itself back from this brink.

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