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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Liberals and conservatives united against the filibuster
As the Democrats contemplate the likely loss of a few Senate and House seats in the next election, the prospect of an ungovernable country becomes more salient than ever. This has prompted smart people on the left, including some contributors to this blog (and Thomas Geoghegan, in yesterday’s New York Times) to think about getting rid of the Senate filibuster, which makes it impossible to pass any legislation by a simple majority. (The Democrats are unlikely to lose their majorities in either house.) But there are also principled conservatives who oppose the filibuster on formalist, textualist grounds. It’s time to think about possible allies across political lines. Only a few years ago, many Republicans were critical of the filibuster when it was used to block George W. Bush’s judicial nominees, such as Miguel Estrada and Priscilla Owen. Now that the shoe is on the other foot, some of the people who made those arguments will become staunch defenders of the filibuster, with the alacrity of American Communists shifting their positions the day after the Hitler-Stalin pact. But not all Republicans are political hacks of this kind. Some of them have principled views and are likely to stick to their guns.
Submitted for your inspection, the testimony of my Northwestern Law colleague Steven Calabresi, before the Senate Judiciary Committee Hearing on Judicial Nominations and Filibusters, May 6, 2003:
Thank you Senator Cornyn. I very much appreciate the opportunity to appear before the committee today. The people of the United States have just won a great victory in the war to bring democracy and majority rule to Iraq. Now it's time to bring democracy and majority rule to the Senate's confirmation process. A determined minority of senators has announced a policy of filibustering indefinitely highly capable judicial nominees such as Miguel Estrada and Priscilla Owen. By doing this, these senators are wrongfully trying to change two centuries of American constitutional history by establishing a requirement that judicial nominees must receive a three-fifths vote of the Senate instead of a simple majority to win confirmation.
The U.S. Constitution was written to establish majority rule. The historical reasons for this are clear. A major defect with the Constitution's precursor, the Articles of Confederation, was that it required super majorities for making many important decisions. The Framers deliberately set out to remedy this defect by empowering Congress to make most decisions by a simple majority. The only exceptions to this principle are in seven express situations where a two-thirds vote is required. Each house of Congress does have the power by majority vote to establish the rules of its proceedings but there's no evidence this clause was originally meant to authorize filibusters. From 1789 to 1806, the Senate's rules allowed for cutting off debate by moving the previous question, a motion which required only a simple majority to pass.
The filibuster of legislation did not originate until 1841, when it was employed by Senator John C. Calhoun to defend slavery and an extreme vision of minority rights. Calhoun was called a filibusterer from a Dutch word for pirate, or as we would say today terrorist, because he was subverting majority rule. From 1841 to the present, the principle use of the filibuster has been to defend Jim Crow laws oppressing African Americans. Now for the first time in 214 years a minority of senators are seeking to extend filibustering from legislation to the whole new area of judicial nominees -- nominees who they know enjoy the support of a majority of the Senate.
This is a bad idea for three reasons. First, such filibusters weaken the power of the president, who is one of only two officers of government who is elected to represent all of the American people. Second, filibusters of judges undermine judicial independence by giving a minority of senators led by special interest groups a veto over who can become a judge. It's already hard enough for talented and capable individuals to be appointed judges without a minority of senators opposing a litmus test. Third, the filibuster of legislation can at least be defended on the ground that federal legislation ought to be considered with extraordinary care. In contrast, the confirmation of one out of one hundred and seventy-five appellate judges is a much less momentous matter. This is especially so since a Judge Estrada or a Judge Owen would be only one judge on a panel of three sitting on a court with twelve to fifteen judges.
The Senate can always change its rules by majority vote. To the extent that Senate Rule Twenty-Two purports to require a two-thirds majority for rules changes, Rule Twenty-Two is unconstitutional. It is an ancient principle of Anglo-American constitutional law that one legislature cannot bind a succeeding legislature. This principle goes back to the great William Blackstone, who said in his commentaries "Acts of Parliament derogatory from the power of subsequent parliaments be naught." Three Vice Presidents of the United States presiding over the Senate, Richard Nixon, Hubert Humphrey, and Nelson Rockefeller, have all ruled that the Senate rules can be changed by a simple majority of the Senate. Lloyd Cutler, White House Counsel to Presidents Jimmy Carter and Bill Clinton, has written in the "Washington Post" that Senate Rule Twenty-Two is plainly unconstitutional. The Senate can and should now amend Rule Twenty-Two by simple majority vote to ban filibusters of judicial nominations.
Calabresi’s proposal was limited to the banning of filibusters of judicial nominations, but its logic applies to the filibuster generally. The text of the Constitution provides for a two-thirds majority for: 1) the passage of constitutional amendments by both the House and the Senate; 2) the over-riding of a presidential veto by both the House and the Senate; 3) the ratification of a treaty by the Senate only; 4) the conviction of an official by the Senate only when that official has been impeached by a majority of the House of Representatives; 5) the expulsion of a Member either of the Senate or of the House of Representatives; 6) the lifting by either House of the ineligibility to serve in that House of an individual who having previously taken an oath to uphold the Constitution “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof;” and 7) the two Houses acting together to remove a President from office who is disabled when the Vice President and a majority of the Cabinet have petitioned Congress to do so.
In ALL other instances, the presumption seems to be a presumption of majority rule. This is the case for law-making pursuant to Article I, Section 7, for admitting new states to the union pursuant to Article IV, Section 3, and even for calling a new constitutional convention pursuant to Article V.
The political case for abolishing the filibuster is clear. Without it, the Democrats have a reasonable chance of passing effective legislation for at least two more years, even if they lose a few seats in the midterm election. They might even be able to amend the health care bill to add a public option. But the case is not only political. There is a powerful formalist case for getting rid of the filibuster.
(Thanks to Steve Calabresi for sharing his Senate testimony with me. I make no representations here about his present views, about the filibuster or anything else.)