April 21, 2005
The Republicans' New Perspective on the Filibuster
By Steve Chapman

In the Senate debate over the filibustering of judicial nominees, it's helpful to know something about congressional procedure, democratic theory and constitutional interpretation. But none of those is as important as the oldest law of politics: Where you stand depends on where you sit.

Republicans are currently perched atop a comfortable majority, with 55 out of 100 senators. Like majorities everywhere, they really like majority rule. Democrats, who once took control of Congress as their natural birthright, have gotten used to being outnumbered in the Senate. So they are determined to use any tool to keep the majority from imposing its will.

President Bush's favorite Supreme Court justice, Antonin Scalia, was lionized by conservatives for his blistering dissent when the court struck down laws against sodomy. In that opinion, Scalia denounced "the invention of a brand-new 'constitutional right' by a court that is impatient of democratic change."

But GOP conservatives have decided it's their turn to play inventor. They have convinced themselves that the filibustering of judicial nominees is unconstitutional, and that those nominated to the federal bench have a constitutional right to an up-or-down vote by the full Senate.

The Constitution says the president appoints judges with the "advice and consent" of the Senate. Conservatives interpret this to mean the Senate has the power to accept or reject a nominee, but not to do nothing. The filibuster, however, allows as few as 41 senators to block a vote indefinitely. So Senate Majority Leader Bill Frist, R-Tenn., has threatened to change the rules to ban its use against judicial nominees.

There are two things wrong with the Republicans' argument: 1) It has zero support in the text of the Constitution, and 2) it's completely at odds with their handling of judges nominated by President Clinton.

The Constitution has one thing to say about the rules of the Senate: that those rules are not to be found in the Constitution. "Each house may determine the rules of its proceedings," it states in Article I, Section 5, at which point it abruptly drops the subject.

Critics of the filibuster, however, say there are limits to Congress' authority over its own deliberations. In their view, rules may not impose a "supermajority" requirement that the Constitution doesn't provide (as it does for treaties and constitutional amendments, which have to pass by a two-thirds vote).

Nice theory, but where did they find it? Not in the Constitution. The "advice and consent" clause doesn't even say that a majority of senators is needed to confirm a nominee. The definition of "consent" is left to the Senate.

Conservatives are fond of citing Sarah Binder of the Brookings Institution, a leading scholar on the filibuster who supports strict new limits on its use. They often quote her declaration (made in an article co-written with Steven S. Smith of Washington University) that this procedure, far from being part of the framers' design, "was not created until 1806" -- and "probably by mistake." They prefer not to quote other lines from that article, such as: "No reading of the Constitution can support the idea that filibusters are unconstitutional."

Republicans portray the Democrats' use of this device against judicial nominees, however, as shockingly unprecedented. In fact, the GOP used the filibuster to block Lyndon Johnson's 1968 nomination of Abe Fortas for chief justice of the United States. More recently, they tried valiantly to filibuster six of President Clinton's choices for the federal bench.

But usually they didn't need this tactic to prevent the full Senate from voting. Richard Paez, nominated to an appeals court, had to wait more than four years for the Senate to vote on his confirmation. Particularly during the last year of the Clinton presidency, Republicans were loath to fill vacancies that might be filled by George W. Bush. Often, the GOP-dominated Judiciary Committee simply refused to send such nominations to the floor. That and other delaying tactics were used against some 60 Clinton appointments to the bench.

If the Constitution guarantees nominees a full Senate vote, there are a lot of Clinton nominees whose rights were rudely trampled. It's hard to see why blocking a nomination by means of a filibuster is illegitimate, but blocking one by means of committee inaction is not. It's hard to see why a parliamentary procedure that has existed for two centuries is suddenly unconstitutional.

But sometimes, you can't see something because your view is obstructed. Sitting atop all three branches of government, Republicans suddenly have no trouble seeing the need for the majority to get its way, right away.

©2005 Creators Syndicate

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