Commentary

The Constitutional Option

This article originally appeared in the New York Sun on April 28, 2005.
No question, we’re headed soon for a Senate showdown on the judicial filibuster, probably right after the Senate returns from the break it’s taking next week. Everyone in Washington knows that this is the first big skirmish in the upcoming battle for the Supreme Court. In fact, it may well determine the outcome of the High Court battle, which is why the fur is now flying. Here’s the scenario.

Last week the Senate Judiciary Committee signed off on two of President Bush’s federal appeals court nominees, Janice Rogers Brown, who sits on the California State Supreme Court, and Priscilla Owen, from the Texas Supreme Court. It was a straight party line vote, 10-8. “Outside the mainstream,” said the Democrats, even though both nominees were overwhelmingly re-elected and both received the American Bar Association’s highest rating. This was not the first go-round for the two. In the last Congress the committee sent both names to the floor, but Senate Democrats filibustered both, despite cloture votes to end the filibusters that indicated both would have been confirmed had the full Senate been allowed to vote.

It’s that up-or-down vote that Democrats blocked last time, and they say they’ll do it again, just as they did last session with eight other Bush nominees. That’s why Senate Majority Leader Bill Frist has promised that if they do, he’ll bring on the so-called nuclear option. He’ll call on the Senate, by majority vote, to prohibit filibusters in the case of judicial nominations. No longer will it take 60 votes to confirm a nominee. A simple majority of 51 will do. That will mean, come the first Supreme Court opening, that the filibuster will be off the table, and that’s why this preliminary battle over appellate court nominees is so ferocious.

What especially galls Republicans is that the filibuster, with its checkered history of blocking civil rights measures, had never been used successfully to block judicial nominations - until the last Congress. Democrats of late have made feeble efforts to deny that, but the example they most often cite, Abe Fortas in 1968, misses the point. Yes, a bipartisan filibuster of the Fortas nomination to be chief justice was begun. But when a cloture vote was taken, it was clear the nomination didn’t have the support of even a majority of the full Senate. So the White House withdrew the nomination to avoid an embarrassing defeat on the Senate floor. That’s no precedent, therefore, for the 10 filibusters last session. All of those nominees would have been confirmed had a Senate vote been allowed, which is why Senate Democrats didn’t allow one.

Thus, the nuclear option hardly amounts to stripping away over 200 years of Senate practice, as Democrats today are screaming. It’s the Democratic filibusters of the past two years that are unprecedented. Democrats don’t have the votes to defeat Bush’s nominees on the floor. So they filibuster to keep the nominees from ever getting to the floor. It’s not unconstitutional:

The filibuster arose through the Senate’s power to set its own rules, as provided for by the Constitution. But it’s hardly consistent with the tenor of the Constitution. When the framers wanted something decided by a supermajority - like treaties, or constitutional amendments - they said so, explicitly, in the Constitution. By implication, everything else was to be decided by a simple majority. Thus, the “nuclear option” is more properly called the constitutional option.

But doesn’t the filibuster protect minorities against overbearing majorities? Even some Republicans today raise that concern, mindful that one day they’ll be back in the minority. That’s an attractive objection against the Frist plan - until you think about it. If the filibuster were justified for that reason, then why set the vote to overcome it at 3 /5? Why not 2 /3, as it once was, or 3 /4, or even 9 /10? The reason, of course, is that government would be brought increasingly to a standstill - which might not be a bad thing, except that there are some government services we all need.

In fact, the problem with the old Articles of Confederation was that unanimity was required among the states on many things and so stalemate was the rule. We have a taste of that today in the judicial context.

Thanks to the supermajority requirement imposed by Democratic filibusters, the Sixth Circuit Court of Appeals has been half empty for the better part of Mr. Bush’s first term. That means litigation, affecting millions of people, is backing up.

And so we come to the nub of the matter. The filibuster of judicial nominees upsets the balance the framers struck. The Constitution is run through with checks and balances, designed to limit power on one hand, but allow government to go forward on the other. The filibuster intrudes on that design by adding an extra check. But it’s not without costs. No doubt today’s Democrats think they know better how to strike the right balance than the framers did. Republicans are saying the framers got it right. I’d go with the framers. Let’s give these nominees the up-or-down vote they deserve, as plainly contemplated by the Constitution.

Roger Pilon is vice president for legal affairs at the Cato Institute in Washington, D.C., and director of Cato’s Center for Constitutional Studies.