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On the Filibuster


As many people have argued, I would advocate that Alito be filibustered in the Senate. About the nature of his conservatism, there’s simply no serious debate, as I have argued here and here and here and here; any systematic look at his decisions indicates that he’s overwhelmingly likely to be a Scalia/Thomas/Rehnquist kind of conservative, and until Monday morning this wasn’t particularly controversial. (On any individual case you can construct an argument that it’s a purely legal disagreement, but if that was all that was going on there would be a significant number cases where he used ambigiuous legal materials to produce a more liberal result, but there aren’t. There’s nothing wrong with this per se; it’s just evidence that he’s very conservative. It’s the body of work, not any one case.) Obviously, this is very bad from a progressive standpoint, especially since he will be replacing a moderate conservative swing vote. Most liberals agree that Democrats should certainly vote “no.” But should there be a filibuster?

I should start by saying that I am actually against filibusters, if I could set the rules (which, ironically, is an argument in favor of its use, as I will argue later.) But as I have said before, unilateral disarmament is not a plan. The rules are in place; it’s legitimate to use them until they’re changed. There are, however, some good arguments for abjuring the filibuster, and I’ll discuss the two big ones using a framework suggested to me by Publius. The first is what might be called the “Bush won the election” argument, that since Bush won Democrats can only filibuster someone who’s completely unqualified or an utter crackpot, and Alito obviously is neither. I don’t think, however, that this means that the Dems can’t filibuster Alito. First of all, Democratic (and moderate Republican) senators won their elections too, and they’re entitled to use the Senate’s rules to exercise its advise and consent powers, just as the President has the right to nominate (and will obviously not–and should not– nominate someone progressives will like.) I do agree that the Dems should not be able to double-cross Bush if he appointed someone suggested as part of discussions; Hatch let Ginsburg and Breyer through based on a tacit agreement, and that’s fair. But it’s obviously inoperative in this case; not only did Reid not say he was acceptable, he specifically said that his nomination would provoke a major fight. I also don’t think that a filibuster would be justified if Alito were replacing another staunch conservative, but he’s not. I don’t think that Bush’s “victory” in 2000 and historically narrow win for a wartime incumbent provide some kind of normative mandate to effect a major ideological change on the Supreme Court (and judging by the way they’re selling him as a moderate, the White House doesn’t think it has one either.) Both the President and the Senate have their institutional prerogatives, and the nomination’s outcome can and should be fought on that basis; I don’t think there’s any reason to defer to the President here.

The other important objection is a more pragmatic one: the turnaround-is-fair-play argument. The problem, this argument goes, is that if we filibuster then so will they, with nobody better off in the long run. In a context in which the norms of judicial nomination were stable, I think this would be quite compelling. But, of course, that’s not the case. As their rule changes like doing away with the blue slip rules indicates, there’s no reason to believe that Senate Republicans will respect past arrangements, and nor is their any reason to believe that they will defer to the Supreme Court nominees of a Democratic President no matter what happens to Alito. (We don’t know what would have happened had Clinton ignored Hatch and appointed someone like Babbit, but it almost certainly would have been a very hard-fought struggle at best.) Of course, the most likely outcome of filibustering Alito would be getting rid of the filibuster rule altogether–which, of course, as Yglesias says is the best reason to filibuster of all. To paraphrase Joey LaMotta, if we win, we win. If we lose–we still win:

The filibuster is bad. In the long run, the aspects of the U.S. Constitution that make it hard to enact legislation favor conservatism. On any given day, of course, either side may be helped. At the moment, the Democrats are in the minority so filibusters let them do useful things. But over the long haul, a more parliamentary system would advantage liberals.

Breaking the rules is also bad. This, at the end of the day, is what the nuclear option comes down to: not changing the filibuster rule, but violating some other procedural rules in order to change the filibuster rule. The seven Republican members of the gang are engaging in shameful acts of political blackmail. If they think the Senate rules shouldn’t be violated, they should stand against efforts to violate them, not go around striking compromises.

Last, Judge Alito is bad. Since filibusters are, under the current rules, permitted, Democrats may as well use them to stop bad things from happening.

All that being said, the worst possible outcome here is one in which moderate Democrats allow Alito on to the bench in order to preserve the filibuster — a re-run, in other words, of the original “Gang of 14” deal. If Alito winds up on the Supreme Court, the best possible way for that to happen would be a way that also eliminates the filibuster rule. If the filibuster rule is to be maintained, then the best possible way for that to happen would be one that keeps bad judges off the bench.

Yes. If the Senate were planning to enact a legitimate change in the rules to exclusively eliminate the judicial filibuster, then this would be a neutral outcome at best. But since they simply plan to pretend that the Senate’s procedures don’t apply to judicial nominations with no justification at all, this would be the beginning of the end of the filibuster; once this precedent is set, whenever you want to break one you just have the Vice President announce that it doesn’t apply to the given case. And, in the long term, although a lot of short-sighted Republicans don’t see it this will be a clear advantage for progressives over the long run. So if a filibuster leads to detonating the nuclear option, this is a good thing.

None of this is to say that I think it’s likely. Alito was a very smart pick, as conservative as you can get without a paper trail that would make him unconfirmable, and it will be tough to sustain a filibuster. But if you’re asking me what Democrats should do, I think it’s a no-brainer.

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