Bench Memos

A Feeble Case in Favor of Reinstating the Judicial Filibuster

Well, finally—more than a month after I and others made the case against the terrible idea of reinstating the judicial filibuster and on the same day that the Republican conference is set to meet to discuss the proposal—someone has written a piece in support of the idea. Michael Hammond’s RedState post is a doozy—a stew of confusions, distortions, and evasions.

Let’s try to work our way through the screed:

1. Let’s start with Hammond’s wildly revisionist history.

a. Here’s his lead sentence:

Back in 2005, a gaggle of so-called conservative lawyers were hatching a Senate parliamentary “con game” called the “nuclear option,” in order to confirm President George Bush’s judicial nominees.

In fact, as this AP article discusses, Republican senators (including institutionalists like Ted Stevens and Trent Lott) began exploring the so-called “nuclear option” in 2003. As a then-member of the Senate leadership has confirmed for me, the effort was driven by Republican members, not by some “gaggle of so-called conservative lawyers,” though it certainly drew support from lots of conservatives, lawyers included. (My own involvement, for what it’s worth, was limited to some blogging in support of cloture reform right at the inception of Bench Memos in May 2005.) By May 2005, it had the support of nearly all Republican senators.

b. Notably missing from Hammond’s discussion is any explicit mention of the unprecedented campaign of partisan filibusters that Democrats launched against President Bush’s judicial nominees in 2003. That omission enables Hammond to obscure the fact that it was the partisan judicial filibuster that flouted Senate tradition and that cloture reform would have respected that tradition.

c. Hammond oddly contends that “many of us warned [in 2005] that the nuclear option was unnecessary to confirm John Roberts and Samuel Alito,” and he somehow claims vindication in the fact that “Roberts and Alito were confirmed without it.” But the effort at cloture reform was a response to the filibuster of lower-court nominations, and that effort concluded before the vacancies for Roberts and Alito even arose, so it would have been very odd for anyone to have been discussing Roberts and Alito as part of the debate. Further, it’s no surprise that the filibuster is a more difficult tool to deploy on Supreme Court nominations, which receive vastly more public attention than lower-court nominations. (That of course didn’t stop Senate Democrats from trying to filibuster the Alito nomination.)

d. Hammond’s confusions set up his charge that “some of the same lawyers who discredited their own judgment in 2005 by creating this mess are opining that we should leave the nuclear option and its consequences in place.” (Emphasis added.)

This charge is at least triply confused. For starters (as noted in 1.a), it confuses some imaginary “gaggle of so-called conservative lawyers” in 2005 with the Senate Republican caucus. Second, whatever one thinks of the Gang of 14 Agreement that ended the battle for cloture reform in May 2005, that agreement, and the confirmations that followed from it, would never have occurred if Republican senators hadn’t pursued cloture reform. Third, does Hammond seriously maintain that Democratic leader Harry Reid and other Democrats wouldn’t have pursued the idea of abolishing the filibuster for lower-court and executive-branch nominees last year if Republican senators hadn’t explored it ten years ago?

2. Hammond’s condemnation of the “nuclear option” as the “equivalent” of “lies, frauds, bribes, and moral corruption” shows that he simply doesn’t understand what the Senate’s constitutional power to “determine the Rules of its Proceedings” means. That power is necessarily a plenary power that a majority of the Senate may exercise at any time to add to or to revise its rules.

I won’t try to offer an extended argument here, but consider this hypothetical: Let’s say that the original Senate had adopted a rule (whether unanimously or by a single-vote margin) that provided that no bill shall be deemed passed by the Senate unless it wins a unanimous vote and that no change to that rule shall be made other than by a unanimous vote. Would that rule have bound the Senate going forward? Of course not. It is simply impossible, as a formal legal matter, for the Senate to adopt and entrench rules against a change by a later majority.

Senate rules that limit the immediate realization of majority sentiment exist and thrive not because of any legal impediment that prevents a majority from changing the rules but because senators perceive the rules to have long-term value that exceeds the short-term benefit of overriding them. (Yes, I realize that some senators and staffers will profess shock at this elementary reality.)

3. Hammond provides no answer to this question that I’ve posed repeatedly:

What possible reason is there to think that Democrats, when they regain control of the Senate, wouldn’t abolish the judicial filibuster as soon as there is a Democratic president? And if you don’t have a compelling answer to that, why are you supporting a change that would mean that when Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes? 

4. Without bothering to try to provide supporting links, Hammond attributes to opponents of filibuster-reinstatement all sorts of straw-man positions. E.g.:

They argue that the Senate is irreparably destroyed as anything other than a majoritarian institution governed by mob rule whenever it matters.  They also contend that the courts are more important than the preservation of the Senate as an institution….

[They] don’t care whether the confirmation of Supreme Court nominees or the passage of legislation are in line to be “nuked” into non-debatable, unamendable majority votes. [Emphasis added.]

As I’ve explained before, it’s the proponents of reinstating the judicial filibuster who present a far greater long-term threat to the legislative filibuster, as they wrongly maintain that some abstract principle, completely disconnected from Senate practice and history, requires that the legislative filibuster and the judicial filibuster stand or fall together.   

5. As for Hammond’s implication that his position is the real “conservative” position and that anyone who disagrees with him is a “so-called” conservative: Please tell that to all the conservative Republican senators who supported cloture reform in 2005 (including, to cite just a couple of examples, Jim DeMint and Tom Coburn). Please tell that to the more than two dozen conservative leaders who oppose reinstating the judicial filibuster.

To be sure, I could play this “more conservative than thou” game against Hammond by pointing out who some of the folks who share his position are. But this is a very stupid game and shouldn’t detract from a careful assessment of the merits of a proposal.

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