TCS Daily


Why I Support the Filibuster Deal

By Stephen Bainbridge - May 26, 2005 12:00 AM

The so-called Gang of 14's deal on judicial nominations aroused the ire of activists on both the left and right, but it is my friends on the right who seem to have been most disaffected. In contrast, I'm a proud charter member of the Coalition of the Chillin', which is dedicated to the proposition that the world did not end on May 23rd. (We even have t-shirts!)

Some critics of the deal wanted the Senate GOP majority to pull the trigger on what they call the constitutional option (and the rest of us call the nuclear option), so as to establish a purported constitutional principle that the advice and consent clause does not authorize the Senate to require a supermajority vote to approve judges. I respect the expertise of the many scholars who hold this position, but am not persuaded by it.

The constitutionality of the filibuster as applied to judicial nominations (or anything else for that matter) is quite complex. It's said that the Constitution's advice and consent provision is counter-majoritarian. But so what? So are things like the committee process, holds, and unanimous consent requirements. I believe that the Constitution permits all of these practices, even though they're counter-majoritarian. The Constitution, in Article I, section 5, seemingly contemplates that the Senate may adopt rules other than those set forth in the Constitution: "Each House may determine the rules of its proceedings." Isn't the filibuster rule just such a procedural rule?

It is said that the Constitution sets out specific instances in which a supermajority vote is required. The advice and consent provision is not among them. But so what? The Constitution doesn't say the list of supermajority vote requirements is exclusive. Just as shareholders of a corporation can adopt bylaws requiring a supermajority vote for matters as to which the corporation statute only requires a majority vote, why doesn't Article I, section 5 allow the Senate to do likewise?

Besides which, the GOP used blue slips and Judiciary Committee rules to bottle up dozens of Clinton judicial nominees in committee. As, of course, the Democrats sometimes did to Bush 41 and Reagan nominees. So even if the Constitution requires an up-or-down vote on every nominee, there is bipartisan history of ignoring that rule. Too many of my conservative friends are ignoring this little fact.

Other critics of the deal make the partisan claim that the Democrats will simply do away with the filibuster whenever it suits them, to which I offer three observations: First, a chief problem with American politics these days is the assumption on both sides of the aisle that the other side is unprincipled. There are people of good will and principle on both sides and I, for one, am willing to take the Democrats who signed the deal at their word. Of course, as Ronald Reagan said, "trust but verify." Second, as a practical matter, changing the filibuster is tough. It's only happened a relatively few number of times. The Democrats never tried it back when the GOP filibustered Clinton legislative proposals. Indeed, the Democrats never even tried to change the Judiciary Committee rules that the GOP used to bottle up Clinton nominees in committee. So why should the GOP pave the way for them? Finally, and most importantly, even if the Democrats are as unprincipled as some on the right argue, does that mean we on the right should also give up our principles? Two wrongs, after all, do not make a right. Hence, we come to my main point, which is that the deal preserved an important constitutional principle.

In my view, critics of the deal are putting short-term partisan gain ahead of both principle and long-term advantage.

Russell Kirk taught that there are ten core conservative principles, but at the heart of all of them is the basic notion that change should be slow and prudent:

        Conservatives are champions of custom, convention, and continuity 
        because they prefer the devil they know to the devil they don't know. 
        ... Burke's reminder of the necessity for prudent change is in the mind of the 
        conservative. But necessary change, conservatives argue, ought to be gradual 
        and discriminatory, never unfixing old interests at once.

        ... In politics we do well to abide by precedent and precept and even 
        prejudice, for the great mysterious incorporation of the human race has 
        acquired a prescriptive wisdom far greater than any man's petty private 
        rationality.

        ... Any public measure ought to be judged by its probable long-run 
        consequences, not merely by temporary advantage or popularity. 
        Liberals and radicals, the conservative says, are imprudent: for they dash at 
        their objectives without giving much heed to the risk of new abuses worse 
        than the evils they hope to sweep away. As John Randolph of Roanoke put 
        it, Providence moves slowly, but the devil always hurries.

The filibuster is a profoundly conservative tool, which advances each of Kirk's goals. It slows change by allowing a resolute minority to delay -- to stand athwart history shouting stop. It ensures that change is driven not "merely by temporary advantage or popularity" but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule? The left knows that the filibuster is a deeply conservative weapon whose main function is to advance the function the founders intended for the Senate:

        In selecting an appropriate visual symbol of the Senate in its founding 
        period, one might consider an anchor, a fence, or a saucer. Writing to 
        Thomas Jefferson, who had been out of the country during the Constitutional 
        Convention, James Madison explained that the Constitution's framers 
        considered the Senate to be the great "anchor" of the government. 
        To the framers themselves, Madison explained that the Senate would be a 
        "necessary fence" against the "fickleness and passion" that tended to 
        influence the attitudes of the general public and members of the House of 
        Representatives. George Washington is said to have told Jefferson that 
        the framers had created the Senate to "cool" House legislation just as a 
        saucer was used to cool hot tea. (Link)

The filibuster furthers that objective by ensuring that change is, as Kirk put it, "gradual and discriminatory, never unfixing old interests at once."

Proponents of the nuclear option claim to believe that abolishing the filibuster could be limited to judicial nominations. It's a coin flip as to whether this is naive or disingenuous. It's a slippery slope to abolishing the filibuster as to Presidential nominations or even legislation. Would the GOP be tempted to abolish the filibuster if necessary to put John Bolton at the UN? Or to ram through Social Security reform? Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don't have the filibuster then? Our slim majority in the House?)

Even if this precedent could be limited to judicial nominations, what happens if President Hillary (with a 50-50 Senate split) nominates somebody like Larry Tribe or, worse yet, Margaret Marshall to the Supreme Court? Wouldn't it be handy to still have the filibuster around then? Sure, the Democrats could pull the nuclear option, but, again, why should the GOP pave the way?

I've been as critical of Democrat obstructionism as anyone. But even in the unlikely event that pulling the trigger on the nuclear option would have guaranteed that every one of President Bush's current and future nominees ultimately would have passed a confirmation vote, the cost in terms of both principle and long-term advantage still would have been too high.

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