Filibusters are a disease, but nuke option's no cure

Call it “nuclear” if you are a Democrat or “constitutional” if you are a Republican, but either way a big change is coming in Senate rules on the confirmation of judicial nominees. This change is born of legitimate frustrations about judicial filibusters, but at the end of the day it will fundamentally alter the Senate for the worse.

Call it “nuclear” if you are a Democrat or “constitutional” if you are a Republican, but either way a big change is coming in Senate rules on the confirmation of judicial nominees. This change is born of legitimate frustrations about judicial filibusters, but at the end of the day it will fundamentally alter the Senate for the worse.

Advocates of good government should be disheartened both by the filibusterers and by those who would change the filibuster rule.

The filibuster of judicial nominees is an extraordinary and a deleterious tactic. It is true that in the past 20 years there has been an escalating war on judicial nominees, in which both parties have dirty hands. We have seen character smears, most prominently of Supreme Court nominees Robert Bork and Clarence Thomas, but also by Republicans and Democrats of lower-court nominees of Presidents Reagan, Bush and Clinton. And both parties have ratcheted up techniques used to delay or defeat nominees, including the refusal to hold committee hearings or floor votes and the placement of holds on nominees.

The filibustering of judicial nominees is a further step in the wrong direction. All of the unfortunate tactics used in recent years, such as holds and denial of committee or floor votes, were attempts by a majority to defeat nominees. Because there is a traditional deference given to the president for his appointments, Republicans and Democrats while in the majority found it easier to kill or delay nominees through these indirect methods rather than defeat them on the floor. These were unseemly tactics, ones that should be abandoned, but the filibustering of judicial nominees is worse, as it routinizes the idea that you need 60 votes to confirm a judge.

Defenders of judicial filibusters are working hard to make them seem a traditional and acceptable part of the nomination process. They point to numerous cloture votes on nominees in recent years, but in many cases cloture is sought even when there is no organized ongoing filibuster. There have also been quixotic filibuster attempts made by small groups of senators, including one against Clinton nominee Richard Paez, in which Senate Majority Leader Bill Frist (R-Tenn.) participated, where a small group of senators has opposed a judicial nominee. But these were not party-organized efforts, and the senators participating fell far short of the 41 needed to defeat a cloture vote.

The most oft-cited case is the nomination of Abe Fortas to be chief justice in 1968. His nomination was filibustered and, after one unsuccessful cloture vote, withdrawn. Both sides have nuanced arguments as to how many angels can dance on Fortas’s head, but it is worth noting that this was not solely a Republican filibuster — 19 Democrats, including Sen. Robert Byrd of West Virginia, joined the effort — that the filibuster did not last long and that it is not clear whether Fortas had the votes to be confirmed if a vote on his nomination had occurred. Other claims about 19th century precedents for judicial filibusters do not hold up under scrutiny very well either.

In a nutshell, the filibuster of judicial nominees is within the rules but is almost unheard of as a practice and is an unfortunate development.

But despite those arguments against the judicial filibuster, the threatened change in Senate rules to prevent such filibusters would damage the Senate as we know it.

While the Framers did not institute a filibuster (it emerged due to rules changes early in our history), they clearly saw the Senate as a moderating force in the legislative process, the saucer that cooled the hot tea. The filibuster, while not specifically part of the Founders’ vision, is consistent with their aims.

It is not so much that a minority might mount a filibuster against a particular piece of legislation, but the consequences of such a possibility. Because a bill might be delayed or killed by filibuster, senators are wise to work across the aisle. Almost any significant piece of legislation begins with co-sponsors from both parties. Compared to members of the House, senators act more as individuals and are less constrained by party. Each has an independence to speak, to object, to hold up debate.

Even though actual deliberation has suffered in recent decades, the Senate, because of its rules and because of the essential power of debate, is the body in which important pieces of legislation are slowed down, debated, amended or sometimes defeated.

While the current proposal to change the rules would rule out only filibusters for judicial nominees, nothing would stop a determined majority from using such a tactic to pass important legislation in the future. If that occurs, the Senate will become a mirror of the House, where party discipline is strong and the majority rolls over minority opposition.

As the illness and the remedy are both depressing, we should hope that the Senate does what it is often uniquely suited to do: cut a deal that allows face saving on both sides but backs away from the bad precedents of judicial filibusters and their abolition.

Fortier is a research fellow at the American Enterprise Institute.