Bench Memos

Minority Rule or Aid to Deliberation?

I would never call Mike Potemra a “dummy” as one of his correspondents did the other day, but I do think he is wrong about when the filibuster is defensible and when it is not.  A couple of weeks ago at Public Discourse, I defended the filibuster as a way of forcing a willful majority to engage in deliberation with a strong minority that has something to contribute to a debate on legislation.  But here at Bench Memos, recalling the side I took in the discussion five years ago on the Democrats’ use of the filibuster against judicial nominees (which I found constitutionally legitimate but morally objectionable), I suggested that the difference was that there’s precious little “deliberation” going on when judicial nominees are being approved or rejected.  Of course there should be full floor debate and opportunities for senators to persuade one another, but finally there has to be a vote up or down on the president’s nomination, with a simple majority deciding the outcome.

Mike, on the other hand, chiding former critics of the filibuster who now defend it with a Democrat in the White House, says not only that they should be consistent in their views, but that “the filibuster is even more valuable and necessary in the case of judicial appointments than in the case of legislation.”  It may be the only way, he says, to prevent a Dawn Johnsen from getting on the Supreme Court and serving for decades.

Sorry, that’s what we get for electing presidents who would make such appointments and a majority of senators who would approve them.  Five years ago, the Democrats were filibustering circuit court nominations because they understood a) that a lot of law is made on those courts in contrast to the less important but more numerous district courts, but b) the American people would not take much notice of such tactics at that level, while they would surely not tolerate a filibuster of a Supreme Court nomination.  Democrats had the votes but didn’t have the nerve to do it when Samuel Alito’s nomination came to the floor.  He was confirmed 58-42, a margin that made his appointment vulnerable to total obstruction by filibuster.  (Ditto Clarence Thomas, confirmed 52-48 in 1991.)

The sense of the American people strikes me as sound here.  They are not much agitated by a filibuster of ObamaCare, but would have been by a filibuster of Sonia Sotomayor’s nomination.  The difference turns on the question, what is the filibuster for?  Is it a procedural maneuver to be employed for the purpose of fostering deliberation on legislative matters–with obstruction viewed as a means to the end of better legislation, even if that results (for the time being) in the utter prevention of bad legislation when it is presented?  Or is it simply a tactic of obstruction for the purpose of frustrating majority rule?  If the latter–which seems to be Mike’s case for it in judicial nominations–then the filibuster introduces an element of minority rule, which is a suspect thing in a democracy even when it is a purely negative power.  There are places where such negative minority rule is deliberately established in the Constitution, but in each case it is understood as a deviation from a basic principle of justice in a democracy: that the majority, after full debate, is entitled to have its way.  Let’s leave aside here the democratic credentials of the Senate, which can be defended on federalistic grounds not very fashionable today.  Take those credentials as given, however, and the filibuster looks pretty bad if our case for it is merely that we side with the minority’s view of someone as a bad pick for the Supreme Court.

And for every Johnsen we want to keep off, isn’t there a Thomas or Alito we want to put on the Court?

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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