When might filibusters be justified?

Sandy Levinson

I argued in my previous post that Joe Biden should declare that the Senate is not a continuing body and,therefore, that it can modify its rules by a majority vote, without facing a filibuster. Does this necessarily mean that the filibuster should be abolished lock, stock, and barrel? I think this is quite literally debatable, and I see two circumstances where we might want to retain the filibuster, even if, for example, we might want to drop the number of votes required to break a filibuster from, say, 60 to 55. In any event, the two circumstances are:

1) lifetime appointments, which means, obviously the federal judiciary. I, of course, strongly favor eliminating life tenure, especially for Supreme Court justices. If they could serve only 18 years, with no reappointment, then perhaps they should not be subject to filibuster. But until that happy day, I see no principled objection to trying to derail someone whose constitutional views the objector finds genuinely offensive, whether from the right or the left. This is, incidentally, why Lindsay Graham was wrong to say that he was in effect obligated to vote for Elena Kagan because, after all, Barack Obama won the election. I obviously believe that Kagan deserves support and that the Republican opposition to her is spurious to the core, but if one really wants to roll back the New Deal, then it is completely rational to oppose Kagan. Similarly, although Miguel Estrada, whom I met a couple of times, may well be a fine (and most certainly a very bright) person, it is silly for Democrats to express remorse about defeating him in light of Graham's speech. I give him great credit for supporting Kagan, and I have no doubt that she's sincere in saying that he should have been confirmed. But if he had been confirmed, then I strongly suspect that today we'd have Justice Estrada instead of Justice Alito. (Perhaps that proves that we overestimate the signiicance of discrete individuals, for a strong president may usually be able to wear Senate down by nominating persons who are far more alike than different in ideology. That is the topic for another posting.)

Perhaps one should make the same kind of argument for the head of the Fed or the FBI, given that they serve longer terms and have immense power (indeed, as we saw in the winter of 2008, more effective power than the President, who chose to be a bystander as Bernanke and Paulson acted).

2) when, because of the indefensible way that voting is allocated in the Senate, the "majority" in fact represents less than a majority of the American public. As a matter of cold fact, this argument favors the Democrats, inasmuch as Republicans currently tend to benefit from the Senate's allocation of votes. Still, it seems fair to me to argue for a rule that allows debate to be ended only when a majority of senators representing a majority of the population vote to end it. On occasion, that would be 51 (or even 50 + the VP); on other occasions, one might in fact need quite a few more votes. But if the principal mantra behind the "anti-filibuster position" is "democracy" (which is true in my case), then it's difficult to defend a principle that allows a group of senators representing less than the majority to ram controversial legislation down the throats of the presumptive majority.

3) a third argument that is often made is that the filibuster is a useful measure of "intensity," since otherwise the votes of a marginally-supportive and an intensely-opposed senator are treated equally. In theory this is a good argument, but, alas, the principal example of the "intensity" argument is Southern racists who used the filibuster to stop substantial civil rights legislation until 1964. And, of course, in the old days, whether good or bad, intensity was measured by a willingness to stay up all night and make multi-hour speeches; it had not become the basically costless gesture that is now, with attendant problems of "moral hazard" when one in effect gets an important good for free.

As noted above, none of this suggests that Biden should turn his back on critics of the filibuster in his capacity as VP.
Posted 11:27 AM by Sandy Levinson [link]