December 5, 2004
AS OLD AS THE EXPOS:
Senate's 'Nuclear Option' (Michael Gerhardt and Erwin Chemerinsky, December 5, 2004, LA Times)
The GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate. Not only do the Republicans hope to do it without following the long-established rules for changing Senate procedure but, if they're successful, they would eliminate a key check, guaranteeing their party's absolute control over Supreme Court appointments.Filibusters are possible because of a parliamentary rule that allows a minority of senators to keep debate open on any subject; the votes of at least 60 senators are needed to end debate. This reflects the Senate's historic commitments to protecting minority viewpoints and encouraging consensus. Without the filibuster, 51 senators reflecting a minority of the population could pass anything and not bother to consult with the remaining senators, who represent a majority of the population. The filibuster is a key check in our system of checks and balances.
The filibuster is as old as the Senate itself, as Sen. Bill Frist (R-Tenn.) recently noted. The first one was in 1790, when senators from Virginia and South Carolina sought to prevent the location of the first Congress in Philadelphia.
For Republicans today to denounce filibusters of judicial nominations as obstructionist is disingenuous. Republicans used filibusters when they were the minority party — just as the Democrats do now. In 1968, Sen. Strom Thurmond (R-S.C.) led a successful filibuster blocking the confirmation of Abe Fortas as chief justice and Homer Thornberry as associate justice.
You've pretty much given up the game when you have to acknowledge that the first filibuster of a judicial appointment came in 1968. Posted by Orrin Judd at December 5, 2004 12:06 PM
Date and context aside, the examples are inapt.
First, Fortas' nomination was to Chirf F. Justice of Supreme Court, whereas the 10 or so nominations the Dems have been stalling over the past two years are for seats lower. (I think that is an important distinction.)
But more importantly, Fortas' candidacy was doomed by bi-partisan sense that he had lied to Congress during his nomination to the SC. The general consunsus with Fortas was that the filibuster held up the nomination, but the scandal killed it. None of Bush's nominees has been similarly tainted.
Thornberry's nomination was linked to Fortas', and I could not find anything that suggests that it was fillibustered but rather that with Fortas' nomination withdrawn so was Thornberry's. Given the author's clear slant here, I assume he just padded his claim sheet. (But I can be proven wrong...)
Posted by: Moe from NC at December 5, 2004 2:23 PMSo let's get this straight - for the liberals, 67 was too many votes in 1975. But now in 2004, they want to keep 60 (in this special case).
Frist should start quoting Mike Mansfield every day, Bush should re-nominate all the on-hold judges, and see what happens.
Posted by: jim hamlen at December 5, 2004 2:23 PMChemerinski gave the constitutional law lectures in the Bar preparation courses I took. Two three-hour lectures in one day with a break for lunch. We had a pre-printed outline we were to fill in and take notes on. He stood on stage with nothing more than a microphone in his hand, no notes, not even a lectern, and proceeded to exactly follow the contours of a very long outline, remembering headings, sub-headings, case cites & even page numbers on the outlines, all without any sign of having to search his memory to do so. Once, in the afternoon, he got ahead of himself on the outline, and the entire auditorium tensed up a little. But then Chemerinski caught himself and went back to the proper place. The crowd buzzed & murmered a little at that.
He's difinately a soggy old lib, but you wouldn't have been able to guess his ideology from the lecture -- he just gave a concise and clear account of the current state of the law. His book "Constitutional Law, Principles and Policies" is much the same, though the liberalism is a bit more on display there. My Con law prof, a thorough Federalist Society conservative, recommended his book as an auxillary to the course materials without hesitation.
He was a nice guy, too, happy to take questions during breaks.
Posted by: Twn at December 5, 2004 2:32 PMI'd rather be on the end of Lindy England's leash than listen to Chemerinsky for hours. His weekly appearance on the Hugh Hewitt show always has me diving for my radio presets. I return only when I know he is off the air. That voice, the condescension, the arrogance -- unbearable.
Posted by: Melissa at December 5, 2004 5:15 PMWhether 51 Senators "represent" a majority or a minority of the population is a red herring. Senators represent states, not crowds. In any case, if Senator want to filibuster, make them take the floor and babble. The current practice of a virtuial filibuster is the worst of both worlds: it bottles up appointments that would win if brought to the floor, and it frees the Senate to do other things.
Posted by: Axel Kassel at December 5, 2004 9:40 PMoj,
There was no chance Fortas would ever be confirmed as Chief Justice, especially after the Judiciary Committee made public what most Senators already knew:
"Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.
On October 1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, "the Fortas appointment would have been different."
http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm
It also seems to me that nominating a sitting justice for Chief is hardly the same thing as nominating a justice, period.
Posted by: Timothy at December 6, 2004 1:17 AMIt also seems to me that nominating a sitting justice for Chief is hardly the same thing as nominating a justice, period.
Posted by: Timothy at December 6, 2004 1:17 AMOn Fortas, the whole nomination was resolved within 8 days. The cloture vote took place after 6 days, and Fortas supporters voted against ending debate -- because they knew he didn't have the votes. 96 Senators spoke on the floor about the Fortas nomination - it was a passionate issue.
There was never any effort to use the filibuster to prevent him from receiving an up-or-down vote. That's a recent Democratic innovation.
Posted by: pj at December 6, 2004 8:44 AMThere are two problems with removing the filibuster. The first is that you can always be on the receiving end of the same treatment, when the party opposite gets into power again. The other is historical opprobrium. Nothing gets most liberal historians up in arms more than FDR's Court Packing, for example.
Posted by: Bart at December 6, 2004 10:22 AMOrrin, are you really maintaining that the first filibuster of a judicial nominee came in 1968? Are you claiming it on the evidence of this article, which doesn't say that? Your standards are atrocious.
Posted by: Rick Perlstein at December 6, 2004 7:42 PMThe Senate says Fortas was the first Supreme Court nominee to be filibustered:
http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm
If you know of lower court judges being filibustered I'd be glad to hear about all of them.
Posted by: oj at December 6, 2004 10:02 PMJuan Non-Volokh, December 6, 2004, Chemerinsky's Changed Tune on Filibusters In yesterday's L.A. Times, law professors Erwin Chemerinsky (Duke) and Michael Gerhardt (William & Mary) argue against Republican proposals to eliminate the availability of filibusters for judicial nominations. This so-called "nuclear option," Chemerinsky and Gerhardt write, would be "a cynical exercise of raw power and not based on constitutional principle or precedent." Elimination of the filibuster "would transform the Senate into a rubber stamp." That's what Chemerinsky says now. But in 1997 -- when there was a Democratic President who found some of his nominees slowed by a Republican Senate -- Chemerinsky sang a different tune. As Patrick Frey documents here, Chemerinsky co-authored a 1997 law review article taking a quite different stance.
The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.Indeed, in
1997 Chemerinsky appeared to endorse the view that Senate Rule XXII, which purports to require a two-thirds vote to change the filibuster requirement, is unconstitutional. Posted by: Robert Schwartz at December 7, 2004 3:55 AM