Bench Memos

Judicial Versus Legislative Filibusters

As I explained in “Don’t Bring Back the Judicial Filibuster,” the argument that reinstating the judicial filibuster would somehow help to preserve the legislative filibuster makes no sense and “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, as discussed in the preceding paragraph, 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.

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 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 (if increasingly fragile) consensus that it is valuable.

Insofar as there is any practical link between abolition of the judicial filibuster and abolition of the legislative filibuster, it is the opposite of what the proponents of reinstating the judicial filibuster imagine. Appeasement doesn’t work. If Senate Democrats discover that, far from exacting any price for abolishing the judicial filibuster, Senate Republicans will simply reimpose the filibuster to the detriment of Republican presidents, they will have all the more incentive to abolish the legislative filibuster when the short-term benefits of doing so are high.

I’ll just add one further thought: Over the next two years, Senate Democrats will be the most ardent defenders of the legislative filibuster and will insist on how it is fundamentally different from the judicial filibuster. Ironically, 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. 

 

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