When Republicans take control of the Senate in January, should they revive the judicial filibuster that Democrats instituted in 2003 when George W. Bush was president, but ended last November when Republicans were filibustering Obama nominees? That heads-I-win-tails-you-lose question probably answers itself, but the background is a bit more complicated.
In fact, in a post I rushed into print yesterday morning I mangled some elementary filibuster facts, which I partially corrected late in the day after a reader kindly alerted me to the error. I’m tempted to say that an impostor was writing under my name, but the better explanation perhaps is too little sleep from following overnight election returns. In any event, it turns out that Harry Reid, having gone “nuclear” by ending the judicial filibuster a year ago is in no worse shape going into the next two years, as I’d initially implied, than he would have been had he kept it in place. It’s after that, if there’s a Republican president, that he’ll no longer have the filibuster at hand.
So what’s going on here? Let’s start at the beginning. Article I, section 5 of the Constitution says that “Each House may determine the Rules of its Proceedings.” As students of the subject know, those rules can be arcane. And they change, about which there are also rules. The filibuster is a case in point. It’s nowhere in the Constitution, and it’s changed over the years. On the merits, a good case can be made on either side of the practice. In general, it can keep bad (or good) laws from being enacted—or bad (or good) laws from being removed. In the abstract, therefore, it’s a wash. Empirically, it depends on the history of its use—and where you sit.
It’s on legislation, however, that we usually think of the filibuster, not on executive branch nominations, and for good reason. As Ed Whelan wrote at NRO yesterday:
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.
In fact, apart from the anomalous 1968 filibuster of Abe Fortas, there were no judicial filibusters until 2003, when Democrats, having just lost the Senate, began the practice to block Bush’s nominees. (During the previous two years they simply sat on his nominations, as I discussed in detail here.) And Democrats continued the practice until the 2005 “Gang of 14” compromise was imposed, after which things settle down a bit. But as Republicans discovered, selectively, the judicial filibuster remained an option once Obama was elected.
That changed when Harry Reid went nuclear last November—ending the practice without regard to the two-thirds rule for changing Senate rules (not to be confused with the three-fifths filibuster rule). And that’s where the hypocrisy comes in: Senate Democrats began judicial filibusters in 2003, when they were in the minority and a Republican was in the White House; they ended the practice when Republicans were in the minority and a Democrat was in the White House. If there’s going to be a rule, it’s got to apply equally—few “meta-rules” are more basic than that.
And that’s just the problem with proposals that are in the air to restore the judicial filibuster now that Republicans have retaken the Senate. I discussed similar proposals when they arose a year ago, after Reid went nuclear. The newest ones are discussed more fully by Ed Whelan in the piece linked above, and in a piece in today’s Wall Street Journal by Senator Orrin Hatch and Ambassador C. Boyden Gray. In a nutshell, with Democrats having twice now demonstrated their unwillingness to “play by the rules”—whatever they may be—it’s no time for Republicans to unilaterally disarm, as Hatch and Gray put it. You don’t have to be a partisan to understand that.
Roger Pilon is the founder and director of Cato’s Center for Constitutional Studies, which has become an important force in the national debate over constitutional interpretation and judicial philosophy. He is the publisher of the Cato Supreme Court Review and is an adjunct professor of government at Georgetown University through The Fund for American Studies.