an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
National Coalition to End Judicial Filibusters: What Say You Now?
Democrats hope to reach the magic number of 60 Senators, which will allow them to shut down filibusters. It looks like they might fall just short. At least with respect to judicial appointments, however, they have nothing to worry about.
On March 12, 2003, Senate Majority Leader Bill Frist read on the floor of the Senate a letter from President Bush calling for a ban on judicial filibusters. This is necessary, Bush insisted, "to ensure timely up or down votes on judicial nominations both now and in the future, no matter who is president or which party controls the Senate."
In 2005, The National Coalition to End Judicial Filibusters sent a series of letters to Republican Senators urging that filibsters be abolished (the "nuclear option"). With indignation, they wrote: "As the representatives of millions of American voices, we write again to urge you to end judicial filibusters. If elections are to mean anything, and they must mean something, you must end the obstruction."
Although the membership of this organization included the Who's Who of conservative activists (C. Boyden Gray, Chuck Colson, Gary Bauer, Grover Norquist, Tony Perkins, Jay Sekulow, and many more, almost 200 conservative luminaries in all), their position was not motivated by partisan politics but by principle. "We believe that generations of Americans are called at moments to lay foundations for the future, and that this is one such moment," they wrote majestically.
The Senate must act as steward of the federal courts by returning the power to confirm judges to the Constitution's simple majority requirement. While it is the right of the President to expect the Senate to give Advice and consent within a reasonable period of time, it is the duty of every Senator to offer Advice and Consent through an honest, up and down vote....We ask you also to put partisan advantage aside. While there is no doubt that the Minority's filibusters have helped Republicans win recent elections, we are certain that Republicans will do the right thing for themselves and the Nation by ending the partisan obstruction now.
Like I said, nothing to worry about. The Republicans will not threaten to filibuster any of President Obama's judicial appointments. Their integrity, their respect for elections, and their commitment to the Nation will not allow it. Posted
by Brian Tamanaha [link]
Thanks, I needed a chuckle. I trust you've noted as well how long it's been since we heard Justice Scalia complain of the counter-majoritarian nature of the judiciary? Funny how that stuff works, eh?
But expect Republicans in the Senate to change to "Party before country." That's their mantra. Can't you hear the out-liar (sic) chorus led by little Lisa's bro even before day one of the new administration: the Bush Doctrine of preemption?
The problem with the filibuster is that it allows a large group to block a slightly larger group. It is only a little bit better than majority rule.
The original Senate required consensus, and in many ways one senator can still gum up the works.
But consensus is more than just getting everyone to agree on one vote, it means getting everyone to work together over years.
The reason is that a filibuster pisses off up to 59 senators, and 60 senators can totally piss off 40 others. But if one senator pisses off 99 senators s/he will find they are a true minority, with diminished power. On the other hand, if one senator can stop anything, the other 99 are more willing to actually listen to all of their fellow senators.
For one vote, consensus doesn't work, but for many votes over 2-4-6 years, the requirement of getting everyone on board is a moderating factor in the final legislation.
Another effect of a consensus senate is regulation of the House. If the Senate thinks of itself as an independent body, then they would recognize that their power increases if they require consensus.
If the Senate requires consensus, and this regulates the House, then the legislative branch, as a whole would regulate the executive. Essentially no legislation would pass which could not overturn a veto.
A thoughtful president could initiate this process by stating that s/he will veto any bill which did not pass with a veto-proof margin in both houses.
I just hope the Republicans don't stumble onto a Supreme Court decision I've been trying to put under Chuck Schumer's nose for two confirmation hearings now, one that moots concerns about grilling judicial candidates on their views about matters likely to come before the Court.