Judicial filibusters and the Constitution

Sometime in the next few weeks we are likely to see a dispute over US Senate procedure that America has not seen since 1975, when the Senate changed its rules so that three-fifths of all Senators could end debate. From 1959 to 1975 the "cloture" rule required that two-thirds of Senators voting vote to end debate.

So, are Republicans just being partisan or do Republicans have a legitimate beef regarding Democrat filibusters of Bush's judicial nominees?

Let me refer that question to Charles Krauthammer and his recent column titled, Nuclear? No, Restoration

Four years ago this week, President Bush nominated Texas Supreme Court Justice Priscilla Owen to the federal bench. Four years later, she and six other appeals court nominees remain unconfirmed and unvoted upon because of Democratic filibusters.

This technique is defended by Democrats as traditional and rooted in history. What a fraud. The only example that comes close is Lyndon Johnson's nomination in 1968 of (sitting) Supreme Court Justice Abe Fortas to be chief justice. But this case is muddied by the fact that (a) Fortas was subject to allegations involving conflictsof interest and financial impropriety, (b) he did not appear to have the votes anyway, and (c) the case involved elevation on the court, not appointment to the court.

Even if we concede Fortas, that is one successful filibuster, 37 years ago, in two centuries of American history. In 2000, a small number of Republicans tried to filibuster two Clinton judicial nominees but were defeated in that attempt not only by Democrats but also by Republicans voting roughly 3 to 1 for cloture.

But there are Constitutional issues involved too, as Bruce Fein argues in his recent column titled, Constitution imperiled

If the radical arguments defending judicial filibusters are accepted, the Constitution will be imperiled. The three branches will chronically clash and urgent unwritten constitutional rules will wither. The stakes thus transcend Senate confirmation of judicial nominees.

Further Fein argues that "minority rights" isn't a valid argument either.

The intensity argument would justify the enactment of laws and even the election of members of Congress by zealous minorities. Government by the consent of the governed would be turned on its head, and the wisdom of the Founding Fathers as elaborated by Thomas Jefferson ignored: "The first principle of republicanism is that the lex majoris parties is the fundamental law of every society of individuals of equal rights; to consider the will of society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism."
Haven't defenders of the judicial filibuster advanced principles that deserve no quarter under the Constitution?

For all of the Democrats talk of preserving "checks and balances," they ignore the fact that the filibuster was not a feature of the US Senate that existed under the Presidencies of George Washington, John Adams and most of Thomas Jefferson's. No, the filibuster became a feature of the Senate by accident. The judicial filibuster should be removed on purpose.

UPDATE: Bruce Fein's website has made available this Short History of the US Senate Filibuster.

1789-1807 Senate operates under the same rules as the House of Representatives. According to the original Senate rules, a Senator could make a motion “for the previous question,” which allowed a simple majority of Senators to stop the debate. The modern filibuster did not emerge until the 1830s.

1806 The Senate re-codifies its Standing Rules for the first time. On the advice of Vice President Aaron Burr, the Senate deemed ‘motion for the previous question’ an unnecessary and redundant rule and voted to abolish it. However, no motion for cloture rule replaces it, which opens Senate to the possibility of the filibuster.

1837 A group of Senators move to expunge the censure of President Andrew Jackson after a dispute over the Bank of the United States. Jackson’s opponents employ the filibuster for the first time albeit unsuccessfully. After a long day of debate, the bill’s opponents bow to Jackson’s supporters soon after midnight and permit the motion to proceed.

1917 After the interception of the Zimmerman Note, President Wilson attempts to pass a bill through the Senate to arm U.S. merchant ships. Eleven isolationist Senators, fearing that Wilson is intent on U.S. entry into the war, block the bill with a filibuster. Public outcry against the filibuster ensues.

During a special session of Congress, Senator Walsh invokes the ‘constitutional option’ and challenges the assumption that the current Senate must operate with the Standing Rules of previous Senates. Under that threat, a bipartisan effort re-negotiates Senate rules to include a motion for cloture. Two-thirds of the Senators present may vote to end the debate under the new rules.

1949 Opponents of the motion for cloture contend that the rule, which stipulates that its purpose it “to bring to close the debate upon any pending measure,” applies only to the measure itself and not to the motions to proceed to the consideration of the measure. Therefore, it would be possible to filibuster the motion to consider the legislation indefinitely. Senator Wherry proposes an amendment which would extend the cloture rule to apply to all debatable positions (explicitly including nominations, treaties, and motions to proceed) except motions to proceed to a rules change. The amended rule also raised the cloture requirement from two-thirds of the Senators present for the debate to two-thirds of all Senators. The Senate adopted the Wherry Amendment to the rule after a short deliberation.

1968 The filibuster is employed for the first time against a judicial nominee. A four day filibuster stymies the nomination of Associate Justice Abe Fortas to the position of Chief Justice. His nomination is withdrawn and he resigns because of ethical derelictions in 1969.

1975 Proponents of civil rights legislation unsuccessfully sought additional amendments to the filibuster rules throughout the 1960s. In 1975, minority and majority leaders reached a compromise. Under the new amendment to the rule for cloture, three-fifths of all Senators could vote to end the debate.

Notes:
• “We have gone from 16 filibusters in the 19th Century to 66 in the first half of the 20th Century to 195 filibusters between 1970 and 1994." (Professor Steven Calabresi, Committee On The Judiciary, U.S. Senate, Testimony, 5/6/03)

• Senate Judicial confirmation debates provide ample opportunity for Senators to express their views on the nominee. During the Clarence Thomas confirmation, debate persisted for five full days and sixty-five of the hundred Senators presented statements.

• The filibuster historically has been customarily employed to thwart civil rights for blacks, including legislation protecting black voters in the South, in 1870 and 1890; anti-lynching legislation in 1922, 1935, and 1938; and numerous anti-race discrimination statutes between 1946 and 1975. The most infamous filibuster aimed to scuttle the Civil Rights Act of 1964, and continued for 74 days.