With every recent Supreme Court nomination, senators and commentators have debated whether it is appropriate for senators to filibuster nominees. With a dreary predictability, Democratic senators argue in favor of the appropriateness of filibusters only when Republicans nominate justices and Republican senators argue in their favor only when Democratic presidents nominate justices. In Washington, constitutional provisions and desirable procedures often mysteriously change their meaning with every election, as each party molds rules to its partisan interest.
But such partisan posturing does not answer the more important question of whether filibustering a nominee — for instance, Sonia Sotomayor — will advance the interests of republican government. One needs, rather, to look at the confirmation process under a veil of ignorance as to the partisan identity of the president and the Senate. Viewing the issue from this objective perspective, we believe that the routine use of the filibuster rule will obtain better justices, where better is defined as justices who have better qualifications and whose jurisprudential positions are more broadly supported than they would be in a world without the filibuster rule. In fact, the filibuster rule will temper the counter-majoritarian difficulty — a central problem created for constitutionalism when an unelected judiciary invalidates the decisions of the popularly elected legislature.
The benefits of the filibuster stem from three political truths that define the confirmation process. First, senators and presidents evaluate Supreme Court candidates based largely on their ideological assessment of candidates’ likely votes. For instance, left-wing Democrats were the most likely to vote against the Supreme Court nominees of George W. Bush, a conservative Republican. Second, the president is likely to occupy a more extreme ideological position concerning the issue of judicial review than the median senator (i.e., the senator who is in the middle of the Senate ideologically). A president must win nomination from a primary electorate that is composed largely of members of his own party, and primary voters tend to be more ideologically extreme than voters in general. Consequently, rather than reflecting the views of the median voter of the electorate, presidents are more likely to reflect the views of the median voter of their party, or even to be more extreme. Political scientists confirm that the seven most recently elected presidents have reflected the median view of their party more than the median view of the electorate.
Third, by contrast, senators span a wider ideological space, because of variations in the composition of state voters. New England Republicans are more liberal than most Republicans, and thus Republican senators elected from those states will be more centrist. Similarly, southern Democrats are more conservative than most Democrats, and thus more moderate Democrats are elected. Consequently, a range of senators from the president’s party will have more moderate views than the president.
One can think of senators arrayed along a continuum, with the most left-wing at 1 and the most right-wing at 100. A Democratic president is likely to be at the left of center with a position of 25 and a Republican president at the right of center with a position of 75. Given these political realities, it is relatively easy to see how the filibuster rule will lead to the appointment of more moderate justices. Without the filibuster rule, the president would simply have to obtain the vote of the median senator to get a simple majority. For example, for a Democratic president, the nominee might represent a compromise between a president at 25 with a senator at 50. By contrast, under the filibuster the median senator at 50 is no longer decisive. Instead the pivotal senator is the one who would break the filibuster. For a Democratic president, that would require the president, at 25, to secure the vote of a senator at 60, rather than at 50. As a result, the president, whether Democrat or Republican, would have to nominate a more moderate candidate to obtain confirmation. The paradox is that, in the context of judicial nominations, a supermajority rule like the filibuster rule will likely help promote the preferences of the majority of the Senate.
By promoting the confirmation of moderate justices, the filibuster rule tempers the counter-majoritarian difficulty we mentioned above. The problem has become particularly acute in modern times, when justices rarely decide cases based on the original meaning of the Constitution and tend to inject their own values into constitutional interpretation. The views of the median senator are generally more representative of the views of the median voter in the electorate than of those of the president. Consequently, a supermajority rule helps to promote the appointment of justices who hold views on the Constitution that accord with the median voter and therefore with those of a majority of the public.
It might be thought that this benefit comes at the expense of the useful function of judicial review, because a Court whose judicial views are approved by the majority of the people would never strike down legislation that presumably is approved by the majority. But this is not true: Even on the realist view that judges use their own values to decide cases, judicial decisions differ from legislative decisions, and thus the median voter’s view of what justices should do is different from that voter’s view of what legislators should do. While judges vote on the basis of their preferences, their institutional background and incentives provide them with different preferences than politicians have. For instance, the requirement of writing opinions provides justices with a greater incentive than elected politicians both to be consistent and to follow the decisions of their predecessors. Second, justices have internalized a norm in playing by the rules laid down: This craft norm serves as a constraint, however soft, on the kind of decisions they reach. Finally, justices do not have to stand for election and therefore need not conform their decisions to the views of a temporary majority.
For these reasons, justices’ preferences are often, albeit not always, based on more principled, long-term considerations than those of elected politicians — considerations that may, over the long run, lead to greater stability and prosperity for the republic. For instance, whereas legislators might pass statutes that seek to suppress either overtly or subtly the speech rights of their partisan opponents, the Court is less likely to uphold such statutes. As a result, it is in keeping with judicial review that a judiciary reflecting the median voter’s view of the Constitution will strike down legislation of a popularly elected legislature. In contrast, a Supreme Court that is out of step with the median voter can, over time, undermine the nation’s respect for the judiciary. Thus, the filibuster rule has the added virtue of protecting the judiciary’s legitimacy.
Another advantage of the filibuster rule is that it will also tend to promote highly qualified nominees. While senators may be most concerned with ideology, they or at least the public have some concern about quality, where quality is defined by such matters as strong educational credentials, outstanding experience, and substantial reasoning ability. The latter ability comes in handy, as John Roberts showed, because it often enables the nominee to make a very favorable contrast with the senators themselves. The president thus is more likely to get the Senate to accept a candidate with his vision of judicial review if that candidate is outstanding. Given the greater difficulty of confirmation under the filibuster rule, quality becomes an even more important consideration.
Some might argue that a filibuster rule will lead to more battles between the Senate and the president and generate lengthy contests to fill Supreme Court vacancies. But this effect also produces benefits. The American public is largely ignorant, rationally so, of the issues relating the proper interpretation of the Constitution. The battle offered by confirmation hearings may be the only plausible way to get their attention. Indeed, such lustral struggles may be the best way to prevent a republic from forgetting issues central to democratic constitutionalism, such as the proper nature of and limits to judicial review. As Machiavelli said, an internal conflict within a republic can have the salutary effect of returning it to a debate over first principles.
Happily, President Obama himself endorsed the use of the filibuster against an admittedly qualified nominee, when — with many of his Democratic colleagues — he attempted to filibuster Justice Samuel Alito. Thus, our recommendation is that, at least in this instance, the Republicans follow President Obama’s sound example and filibuster justices, under two conditions: First, of course, the filibuster must be politically prudent. For instance, it does not help the cause of moderate judicial review to attempt to defeat a nominee who, because of some personal characteristic, is so popular that he cannot be defeated or used to illustrate the dangers of extreme jurisprudential views. Nor is it helpful, if the president is likely to succeed in confirming an even worse nominee upon the defeat of the first. Second, the nominee must be worthy of defeat though a filibuster. He or she should have a jurisprudence that will yield extreme and unfortunate results.
By filibustering when these conditions are met, Republicans will not only be promoting their own individual positions on the proper role of judges. They will help moderate judicial review and preserve its legitimacy for future generations.
– John O. McGinnis is the Stanford Clinton Jr. Professor at Northwestern Law School. Michael B. Rappaport is the Class of 1975 Professor at San Diego Law School.