Protect our rights, keep the filibuster
By Michael J. Gerhardt & Larry D. Kramer
Sunday, May 1, 2005
Senate Majority Leader Bill Frist soon may try to change the rules governing the filibuster. Designed to end the Democrats' filibuster against a handful of President Bush's judicial nominations, "the nuclear option" is unwise, unprincipled and contrary to our long-standing constitutional tradition.
The practice of engaging in extended debate has been a feature of the Senate since its earliest days. Almost a century ago, the Senate, acting on the basis of its authority spelled out in the Constitution, formalized that practice in Rule XXII. This rule requires two-thirds of the Senate to end a filibuster of a motion to amend a Senate rule and three-fifths of the Senate to end a filibuster against any other legislative business.
Rule XXII's requirements give a substantial minority within the Senate a significant voice on the propriety of proposed Senate action. Because the Senate comprises two senators from each state the senators supporting a filibuster may represent more than one-half of the population of the United States. Thus, through rules making it difficult to end a filibuster, the Senate has sensibly provided a way of defending minority rights.
In the debate over judicial nominations, some have complained that a filibuster prevents an up or down vote. But this is not unusual. Given its express mandate to adopt its own rules, the Senate has relied on a variety of practices to be resolved without formal up-or-down votes on the Senate floor. Familiar examples include unanimous consent rules, holding legislation or nominations in committee (either by committee vote or inaction), and, of course, the filibuster.
Frist's proposal represents the first time in the history of the United States that the Senate has changed its internal rules of governance without following its rules for amending its rules. The Senate's own precedents unequivocally establish the impropriety of such an action. On at least three separate occasions, the Senate has expressly rejected the argument that a simple majority has the authority claimed by the proponents of the pending proposal. It would be nothing less than a cynical manipulation of well-established Senate rules in order to gain partisan advantage.
Those pushing to end filibusters make several erroneous assertions. First, they claim that it is traditional practice for a president's judicial nominations to receive floor votes. This is false. Presidents from John Adams to George W. Bush have had at least some judicial nominations never get to the Senate floor. Moreover, 14 Supreme Court nominations have been defeated by delay or dilatory tactics and never received floor votes.
Second, the claim that no judicial nominees have ever been filibustered prior to the current ones also is false. Congressional Research Service and other studies of the Senate confirm that there have been filibusters against judicial nominations well before those now.
Third, the claim that the president is constitutionally entitled to have a floor vote on each of his judicial nominations is wrong. The Senate has no obligation to hold floor votes for every judicial nomination, just as it has no obligation to hold floor votes on every proposed bill or treaty. The Senate's rules define the conditions that nominations must satisfy prior to receiving the Senate's advice and consent.
Advice and consent is required for the approval of a nomination. But the Senate need not give its advice and consent on failed nominations. Indeed, Senate Rule XXXI provides that if the Senate has not "acted upon" any nominations "during the session at which they are made" the nominations lapse unless they are "again ... made to the Senate by the president."
Like similar practices, the filibuster has played an important and legitimate role in Senate history. Most fundamentally, it helps protect the nation against the most serious danger faced by a democracy -- permanent "capture" by a faction that, for a moment, has gained control over the three branches of government.
Respect for the filibuster -- and for its essential function in maintaining long-term stability and respect for minority interests -- is an integral part of American democracy. To set it aside out of impatience, frustration or arrogance would be a profound disservice to the nation.
Michael Gerhardt is a professor of law at the College of William & Mary. Larry Kramer is dean of Stanford Law School.