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Does It Matter If the Judicial Filibuster Is Unconstitutional?



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On our side, based on what I’ve read, the way the mail has gone, and the lively discussion we’ve been having in Bench Memos, there seems to be consensus that filibustering judicial nominees is a terrible policy, and deep division over whether it is unconstitutional (some are convinced one way or the other, the rest seem skeptical but uncertain). So the question becomes, does it matter?

Some readers ask: If it’s unconstitutional, do we go to court? I vote no on that one. A constitutional tug-of-war of this kind between the executive and the legislature is a political question that the courts should stay out of. I’d rather lose in the arena of public opinion than take the position that the judiciary is not a peer of the other branches but an authority that instructs them how to resolve their squabbles. If the ultimate object here is to appoint judges who respect the American people’s democratic choices, it would seem perverse to try to secure that aim by empowering the courts as lords over the political branches.

My target is much more narrow and, I hope, practical. I would be very interested in my learned colleagues’ views on it, though. There’s been plenty of discussion about whether the senate should change its rules. But oft-overlooked, it seems to me, is the procedure for changing the rules. This is why I have thought the question of constitutionality is highly significant. Here is how the Washington Post described the situation last year:

Changes to Senate rules usually require up to 67 votes if they are especially controversial. But there is one approach–called the “nuclear option” because of its explosive potential–that would require only 51 votes. Republicans could employ it at almost any time after the new Congress convenes in January.

Under this rarely used procedure, the Senate’s presiding officer, presumably Vice President Cheney, would find that a supermajority to end filibusters is unconstitutional for judicial nominees. Democrats would undoubtedly challenge this ruling. But it takes only a simple majority–or 51 votes from the Senate GOP’s new 55-vote majority–to sustain a ruling of the chair. [Emphasis supplied.]

I am no expert in senate procedures, and have been operating under the assumption that the Post has accurately described the state of play. If it has, doesn’t that make the constitutionality issue crucial?

Of course we all want good judges appointed, and if it’s necessary to change the rules to do that we must seriously consider changing the rules. But we’re also committed to the rule of law. I certainly don’t want the Vice President to make a finding that the filibuster is unconstitutional in this context unless there is a good faith argument that it is–and thus I have tried to construct such an argument. Like the rest of us, I would rather lose with my head held high than win by chicanery.

Which brings me again to Ed’s earlier post, which raises some very interesting and important issues. Are we (am I?) operating on an accurate understanding of the procedure and predicate finding of unconstitutionality necessary for a rule change? And if the Senate’s stated interpretation of its standards for changing rules is wrong, is there any realistic prospect of reconsidering that interpretation? In short, (a) is it true that 51 senators should be able to change the rule without finding that filibusters in this context violate the constitution, and (b) if it is true, is it currently politically possible for 51 senators to do so?



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