Bench Memos

Law & the Courts

How Not To Protect the Legislative Filibuster

One argument that a few conservatives are making against abolishing the filibuster for Supreme Court nominees is that doing so would imperil the legislative filibuster. I’d like to explain why I think that this argument is dead wrong and indeed has things backwards.

The argument that retaining the Supreme Court filibuster is necessary or useful to help preserve the legislative filibuster flies in the face of actual Senate traditions. The long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently.* Filibusters over legislation date back to the 1830s. By contrast, nominations (as this law-review article co-authored by parliamentary expert Martin B. Gold puts it) were “swept into” a reform of the filibuster only in 1949 and “only by happenstance.” And even after this nominal inclusion of nominations in the filibuster rule in 1949, Senate practice continued to regard the partisan filibuster of judicial nominees as illegitimate.

Before Senate Democrats launched their campaign of filibusters against President George W. Bush’s appellate-court nominees in 2003, the only filibuster of a judicial nominee was the broadly bipartisan filibuster of LBJ’s effort to elevate Abe Fortas to be Chief Justice in 1968. Specifically, at a time when cloture under Senate rules required the votes of two-thirds of senators present, the cloture vote on Fortas’s nomination fell short by 14 votes: 45 for, 43 against. Of the 43 votes against, 24 were from Republicans and 19 from Democrats. Indeed, of the 66 Democrats in the Senate, only a bare majority—35—voted for cloture. (Twelve somehow managed not to be present at the time their leader scheduled the vote.) The 19 Democrats voting against cloture accounted for nearly half (over 44%) of the total votes against and for over 65 percent of the votes needed to defeat cloture.

Now that the filibuster has been abolished for all other nominations, it is anomalous to retain it for Supreme Court nominations. It would be far better for defenders of the legislative filibuster to emphasize the distinction between Senate practice on nominations and on legislation by treating all nominations differently from legislation. Ironically, they undermine their cause by wrongly insisting that there is some sort of linkage between the nominations filibuster and the legislative filibuster.

It is true, to be sure, that the same means that Senate Democrats used in November 2013 to abolish the filibuster for lower-court nominees and that Senate Republicans would use now to abolish the filibuster for Supreme Court nominees is available to abolish the legislative filibuster. But there has long been Senate precedent for that means (see, e.g., Gold article at pp. 260–269). The legislative filibuster owes its continued existence not to any formal obstacle that would prevent a Senate majority from abolishing it but rather to a widespread consensus that it is valuable and serves the interests of senators.

* Addendum (3/31): Further emphasizing the distinction between Senate practice on legislation and Senate practice on nominations, a Senate staffer highlights this basic point:

These categories [legislation and nominations] are so different that the Senate has completely separate calendars for legislative and executive business and must actually go into executive session to address nominations.

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