Making an unsound argument is bad. Leaving it uncorrected is worse. Since I would prefer to be bad than worse, it’s time–for me, at least–to reconsider filibusters.
Back in November, I flatly asserted that filibustering judges did not violate the constitution. My contention was that although filibusters are bad policy, this just makes them yet another of the countless unwise choices a free people may make–and for which they may hold each other accountable in the democratic process.
Although I did not develop the argument (it was not central to what I was writing about at the time), it was not an unconsidered one. The constitution is entirely silent on filibusters. It does, however, expressly state (in art. I, sec. 5, cl. 2) that “[e]ach House may determine the Rules of its Proceedings[.]” Thus, as the Senate is empowered to make its own rules, and as there is nothing in the constitution that forbids it from having a rule permitting filibusters, it seemed to me dubious to claim that a Senate minority was acting improperly (as opposed to imprudently) by filibustering judicial nominees.
Sound policy considerations supported this view. As a general matter, in a democratic system, important arguments over how we govern our affairs ought to be decided at the ballot box, without prior restraints. The Bush judicial appointees, as a (slightly oversimplified) political issue, represent a philosophy of governance which holds that the Constitution is not an evolving document, and that the role of judges is to interpret the law as it was understood at the time it was enacted. The timing and substance of any perceived need for evolution is left to the American people. The Democratic filibuster represents a contrary view: that the Constitution is a “living” document which must change with the times, and that judges should be the ones making, and imposing, the changes–even if those changes do not have popular support and would thus be rejected if proposed democratically.
Filibusters, it seemed to me, promoted this policy in two ways. First, by engaging in them, Democrats gave Republicans a ripe opportunity to join the issue and make it a focal part of the electoral process–allowing the American people to evince a preference with the clarity, and the mandate, that flows from a well-defined contest. Second, the continued viability of the filibuster would mean that nominees who were truly unqualified, either professionally or in their understanding of the judicial role, could be blocked by a sober minority if improperly nominated by a president–regardless of whether that president happened to be a Republican or a Democrat.
That’s the disposition from which I’ve weighed this debate which so divides thoughtful people often of one mind regarding things judicial. I’ve listened carefully to the counterarguments and found almost all of them unpersuasive. This includes the oft-repeated contention that there were no judicial filibusters for over two centuries–which has naturally led to bickering over such minutia as whether Abe Fortas was truly filibustered or not. If the filibuster is constitutional, the fact that it was not used for a long time doesn’t alter that fact; on the other hand, that it may have been used once or twice in the past does not change the palpable reality that its current systematic use is unprecedented.
There is a counterargument, though, for which I do not have a good answer. It lies in the structure of the Constitution: the ingenious design of checks and balances, and the common sense that no provision of our fundamental law exists in a vacuum–those prescribing one department’s authorities must be read with reference to (and respect for) clauses that state the enumerated powers and responsibilities of the coordinate branches.
In ignoring Chief Justice Roger Taney’s ruling that he had acted illegally by unilaterally suspending habeas corpus in the thick of the Civil War, Lincoln famously observed that Taney’s myopia, stressing a single clause of the Constitution to the exclusion of the rest, would allow “all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated.” Are those who (like myself) have found the filibuster justified by the Constitution’s express grant to the Senate of rule-making power over its own proceedings making the same analytical error for which Lincoln chastised Taney? I think the answer is “Yes.”
Could the Senate, for example, make a rule that said: “the Senate will only consider presidential appointments in even-numbered years”? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. It would nullify the president’s express constitutional authority to appoint most high government officials (art. II, sec. 2, cl. 2). That is, such a Senate rule could force the president to try to govern not only bereft of the ability to choose judges but, in fact, with no Cabinet and sub-Cabinet officials.
Similarly, if in a fit of pique a rule were adopted that the Senate would no longer consider nominees to the Supreme Court, that would eventually leave the Supreme Court empty, notwithstanding that it is the repository of the judicial power and a branch made co-equal to Congress by the constitution. The branches are supposed to compete, but a construction that allowed one to dissolve another’s powers would, in short, destroy the foundations of the Constitution.
Clearly, there must be some objective limits to the Senate’s authority despite the fact that the clause granting it rule-making power does not expressly admit of any. What should our guiding principle be in determining what those limits are? I believe they ought to be (and in fact are) those points at which the Senate’s powers intersect with the powers of the coordinate branches. That is, the Senate may make rules that control any matter over which it uniquely exercises legitimate authority. Beyond that, its rules must yield to the enumerated powers of the other branches.
If the Senate chooses to consider–or not to consider–health care, crime, tax reform, Social Security or any of the plethora of other areas in which it might legislate, that is for it to decide. Neither the House nor the other branches may legally force the Senate to act (although they may of course try to persuade it to do so). The Senate is well within its rights in those circumstances to determine the rules under which it will proceed. But where its powers cross paths with the recognized prerogatives of the other branches, mere Senate rules may not nullify the constitutional powers of those branches. The president’s warrant to make appointments is such a power.
There is nothing novel about this concept. Indeed, it is played out with regularity between Congress and the courts. Congress, for example, ostensibly has plenary authority to regulate interstate and foreign commerce (art. I, sec. 8, cl. 3). It may not, however, enact a law that announces a legal test for determining what regulations of such commerce are valid. Why not–especially given that the commerce clause expresses no such limitation? Because doing so would impermissibly intrude on the prerogative of the courts to say what the law is. Under this limiting principle, the Supreme Court has struck down, for instance, an act of Congress that attempted to prescribe a test for determining when official action impermissibly burdened religious exercise, as well as a law that attempted to reverse Miranda v. Arizona and replace it with Congress’s own view of the parameters of the Fifth Amendment’s protection against self-incrimination.
The case for voiding the filibuster of presidential appointees is actually stronger than that for the long-accepted judicial override of invalid legislative enactments. To begin with, laws passed by Congress and signed by the president plainly have a higher pedigree than mere, ephemeral Senate rules, yet this avails those laws of nothing if they overstep their bounds. If statutes have to give way, Senate rules must, a fortiori, retreat upon collision with constitutional barriers.
More significantly, there is nothing in the Constitution explicitly giving the judicial branch preeminence in construing the Constitution and federal laws. Rather, the Supreme Court assumed this function two centuries ago and has exercised it ever since. To the contrary, the power of the president to make appointments is explicitly spelled out in the constitution. By blocking it, the Senate is thus effectively denying the executive his indisputable authority.
Does this mean the president gets to make any appointments he wishes? Of course not. Only those as to whom the Senate consents may assume their appointed positions. This, I believe, obligates the Senate to perform its constitutional obligation: to advise and consent, to consider and vote. It may properly reject nominees, but it should not be able to use procedural dodges (such as filibusters or refusing in committee to consider a nominee proffered by the president) to avoid its obligation to vote one way or the other.
Outside the constitution’s express grant of authority to the Senate to make its own rules, the legal arguments in favor of filibusters are mostly makeweight. Among the more frivolous is that filibusters are essential to preserve the First Amendment rights of dissenters, or the speech-and-debate rights of senators (art. I, sec. 6). These important principles guarantee a meaningful opportunity to be heard, not a suffocating right to be heard ad infinitum. They ensure the vital opportunity to persuade, not a minority right to win.
Similarly underwhelming is the palaver about filibusters being somehow necessary to vouchsafe the character of the Senate–to promote deliberation and avoid the rashness said to be more the culture of the House of Representatives. The Senate has not always permitted filibusters, and even today regards them as unavailable in various legislative areas. More to the point, as observed above, no one is disputing the right of the Senate to permit filibusters when only its own processes, and not the powers of another branch, would be affected. Comparisons with the lower chamber, moreover, are especially inapt here. The House has no role in approving presidential appointees. Thus, regardless of what rules the Senate must adhere to in connection with executive branch nominations, it will remain saliently different from the House in this important area.
The tough argument here is practical, not legal. This being real life, a president from either party is fully capable of nominating someone who should not be a judge, and the Senate is equally capable of consenting to such an appointment. The availability of the filibuster might avoid that unusual but highly undesirable result.
On balance, I don’t believe this well-founded fear should be allowed to carry the day. The Framers understood that they were designing a system for human beings, meaning that the possibility of error could be minimized but never eliminated. They rightly believed that presidents would generally pick good, well-qualified people to fill high offices, as presidents from both parties have done. The check to maximize this likelihood was the requirement of Senate consent. Naturally, that would not completely obviate the possibility of a bad person slipping through. In the judicial context, however, the remedy for that rare incident was supposed to be impeachment. It was not to invite procedural chicanery that could, theoretically, render the entire executive branch unable to function.
Filibusters of judicial nominees have always been a bad idea. They are also an unconstitutional idea. I used to think otherwise, but I have not heard an argument that overcomes the structure of the constitution. No matter who is president, nominees deserve an up-or-down vote.
–Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.