An Online Journal of Political Commentary & Analysis
Volume V, Issue # 179, July 11, 2003
Dr. Almon Leroy Way, Jr., Editor
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By Dr. John C. Eastman

I am here today to address a U.S. Senate procedural tactic--the filibuster--that dates back at least to Senator John C. Calhoun's efforts to protect slavery in the old South and that, until now, was used most extensively by southern Democrats to block civil rights legislation in the 1960s. In its modern embodiment, the tactic has been termed the "stealth filibuster." Unlike the famous "Mr. Smith Goes to Wash- ington" movie image of Jimmy Stewart passionately defending his position until, collapsing, he per- suades (or shames) his opponents to change their position, the modern practitioners of the brigand art of the filibuster have been able to ply their craft largely outside the public eye (and hence without the political accountability that is the hallmark of rep- resentative government). I am thus truly pleased to be here today to help the Senate Committee on the Judiciary in its efforts to "ping" the filibuster and make it not only less stealthy but perhaps restore to it some nobility of purpose.

Let me first note that I am not opposed to the filibuster per se, either as a matter of public policy or of constitutional law. I think the U.S. Senate is, within certain struc- tural limits, authorized to enact procedural mechanisms such as the filibuster, pursu- ant to the power under Article I, Section 5, of the United States Constitution to "de- termine the Rules of its Proceedings." And I think that, by encouraging extensive debate, the filibuster has in no small measure contributed to the Senate's reputation as history's greatest deliberative body. But I think it extremely important to distin- guish between the use of the filibuster to enhance debate and the abuse of the fili- buster to thwart the will of the people, as expressed through a majority of their elected representatives. The use of the filibuster for dilatory purposes is particular- ly troubling in the context of the judicial confirmation process, for it thwarts not just the majority in the Senate and the people who elected that majority--as any filibus- ter of ordinary legislation does--but it intrudes upon the President's power to nomi- nate federal judges, and threatens the very independence of the federal judiciary itself.

The constitutionally troubling use of the filibuster to thwart the will of a Senate ma- jority is exacerbated when the Senate majority is attempting to exercise its consti- tutional role in the judicial confirmation process. Such use allows a minority faction in the Senate to impose what is essentially a barrier to the one constitutional mech- anism that allows the political process to have some influence over the judiciary.

There are three principal ways to address the filibuster problem. First, and most drastically, the filibuster could be abolished altogether, not just in judicial confirma- tions but for ordinary legislation as well. Such a move would seem compelled by the absolutist position taken by Senators Joseph Lieberman, Tom Daschle, and Tom Harkin--a move that would not permit anything but a majority vote to be disposive, except in the specific instances where the U.S. Constitution prescribes a superma- jority requirement. Whatever the merits of such a proposal, it is beyond the scope of my presentation today.

A second alternative is to amend Senate Rule XXII so as to preclude the use of the filibuster in judicial nominations. While this alternative is certainly within the Sen- ate's prerogative, pursuant to the Article I, Section 5, power to establish its own rules, I think it fails to give sufficient play in fostering the deliberative process.

A third alternative would be to amend Senate Rule XXII to allow for a limited use of the filibuster to guarantee a reasonable time for debate, without ultimately giving to a minority faction a veto power over a Senate majority. This alternative would dis- tinguish between the use of the filibuster for deliberative ends, a use that I believe is constitutional, and the abuse of the filibuster for obstructionist, undemocratic ends, a use that I believe may well be unconstitutional. I am pleased to see, there- fore, that the proposal made by Senator Zell Miller would give effect to this impor- tant distinction. The "sliding scale cloture vote" mechanism would guarantee debate for a rea- sonable period of time, but would, in the end, not allow a minority faction in the Sen- ate to exert its will over the majority.

Senator Miller's proposal is not without historical precedent. More than 75 years ago, a proposal was advanced to allow for cloture on a mere majority vote. While that proposal was, at the time, rejected in favor of the two-thirds vote requirement ulti- mately enacted, the Senate has already once lowered the cloture vote thresh- old, to the three-fifths requirement that exists currently. Senator Miller's proposal simply completes the reform efforts begun back in 1925.

On first blush, Senator Miller's proposal, and other proposals designed to amend rules that have contributed to a broken judicial confirmation process, might be re- garded as dead on arrival. Why should we expect a minority faction, which currently has a chokehold on the confirmation process, to permit such a rules change, particu- larly when the Senate rules themselves require even a greater majority (two-thirds) to change the rules than is required (three-fifths) to invoke cloture itself? The sim- ple answer is that the use of the supermajority requirement to bar the change in rules inherited from a prior session of Congress would itself be unconstitutional.

As University of Southern California Law Professor Erwin Chemerinsky noted in a 1997 Stanford Law Review article co-authored by Loyola Law School Professor Catherine Fisk, such"entrenchment of the filibuster violates a fundamental consti- tutional principle: One legislature cannot bind subsequent legislatures."

This simple proposition, which dates at least to Sir William Blackstone, not only makes good constitutional sense, but it has been repeatedly accepted by the U.S. Supreme Court in a host of analogous contexts. It was used in the Supreme Court decision in the case of Stone v. Mississippi (1890), for example, to permit a legis- lature to repudiate an exclusive lottery franchise provided by a prior legislature. And it seems to be compelled by the Supreme Court's focus, in the famour Footnote Four of United States v. Carolene Products Company (1938), when the Court listed, among the cate- gories of legislative acts that should be subject to "more exacting judicial scrutiny," those which restrict the political process, as an entrenching su- permajority requirement clearly does.

Professor Chemerinsky's reliance on the concern for political process in United States v. Carolene Products Company brings me to the final point I wish to make, namely, the possibility that resort to the federal courts might be had, should the Senate not ad- dress the unconstitutional use of the filibuster on its own.

Normally, the courts will not interfere with the internal procedures of a co-equal branch of government, but there are exceptions, and the exceptions are perfectly apt in the current situation. Chemerinsky and Fisk contend that a challenge to the con- tinued use of a supermajority requirement to change rules inherited from a prior Sen- ate would not be barred by the political question doctrine.

They also contend--rightly, in my view--that two classes of people would have stand- ing to bring such a challenge because they would have the kind of particularized harm required under current standing doctrine. They make the case as follows.

Imagine that the President nominates a woman to be Chief Justice of the Supreme Court and a group of senators filibuster, openly declaring that they believe a woman never should hold the position. Imagine, too, that 59 senators are on record sup- porting the nomination and have even voted for cloture. Under these facts, the nom- inee would meet the standing requirement. This scenario is almost identical to the facts surrounding the recent use of the filibuster against Texas Supreme Court Jus- tice Priscilla Owen.

Another class of persons with standing would be senators who expect to be part of a majority in favor of confirmation but who fail to secure either the three-fifths neces- sary to invoke cloture or the two-thirds to change the filibuster rule. Such senators have a classic case of vote dilution, and would, as a result, also have standing.

Finally, the President himself, whose constitutional role in the appointments process is severely curtailed by a minority faction in the Senate that refuses to permit either a vote on the President's nominees or a vote on the rules by which those nominees are considered, might also have standing to challenge the Senate's unconstitutional rules.

In sum, there is good reason that the filibuster has only rarely been used in the con- text of judicial confirmations, and never before against a circuit court judge. The use of the filibuster thwarts the will of the majority, and is therefore not only undemo- cratic but very likely unconstitutional. Moreover, should the Senate decide on its own initiative to repeal the offending use of the filibuster rule, any attempt to use the filibuster to entrench the filibuster would itself be unconstitutional, and would provide grounds for court intervention by nominees, by individual senators or per- haps by the President himself, to insure that the constitutional norm of majority rule is given effect.

Appointment of U.S. Federal Judges

Senate Confirmation of Judicial Nominees

Legal Issues, Lawyers, & America's Judiciary

John C. Eastman is Professor of Law at Chapman University and Director of the Center for Constitutional Jurisprudence, a division of the Claremont Institute. The article above consists of excerpts from Professor Eastman's testimony before the U.S. Senate Judiciary Committee on May 6, 2003.

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An Online Journal of Political Commentary & Analysis

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Conservative Government Ensures a Nation's Strength, Progress, & Prosperity