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
In an op-ed in today's Wall Street Journal, I suggest that we should stop talking about the "filibuster" as if it were one undifferentiated disgrace. We should instead view the problem through the lens of the separation of powers: Filibusters on legislation (Article one) raise different issues from those involving nominations to the executive (two) or judicial (three) branches. But current reform efforts fail to trichotomize the problem, and as a consequence, we are in danger of missing an extraordinary political opportunity to completely eliminate the filibuster on executive nominations. Unless there is a last-minute rethink, the best we will getting is a watered-down set of half-hearted measures that will have very limited impact.
In the course of pleading for a targeted attack on filibusters of executive nominations, I make a passing claim that is worth a lot more discussion.
There is, I suggest, such a thing as a good filibuster: When dealing with judicial nominations, the current 60 vote rule makes a lot of constitutional sense. Even with this super-majority rule, presidents have increasingly nominated ideological extremists to the bench in an effort to pacify their activist political base. This tendency would be greatly accelerated if it only required 51 votes to obtain judicial confirmation.
Eliminating the judicial filibuster, in short, will generate an increasingly polarized judiciary over time. In response to this obvious danger, many modern constitutions have required specially arduous procedures for the selection of judges to constitutional courts. Germany, for example, insists on a two-thirds vote -- forcing the selection of judicial moderates over time.The successful operation of the German system has encouraged many other countries to follow its lead.
Of course, the meaning of judicial "moderation" changes over time. As the balance of political and constitutional opinion shifts, views that would have been dismissed as too extreme for serious consideration begin to gain a foothold in mainstream opinion, and vice versa. The very definition of "off the wall" argument changes -- as Jack Balkin puts it -- even when judicial moderation reigns.
Nevertheless, a supermajority rule generates a very different evolutionary pattern from one in which the filibuster were eliminated. Under this scenario, the president, together with a slim Senate majority, pushes through a host of extremists -- inviting the next president to retaliate with a host of extremists of the opposite persuasion, and on and on, in a polarizing cycle.
This is why I strongly opposed the efforts of Senate Republicans to eliminate the filibuster on judicial confirmations during the Bush years. And this is why I continue to oppose them today.
I expect many of you to disagree. But even if I turn out to be "off the wall" on this one, my basic point stands: your critique will invoke very different arguments from those that would be appropriate when assessing the legitimacy of legislative and executive filibusters. It will inevitably discuss the distinctive features of judicial review.