Filibusters were used to stop President Obama’s nominations from proceeding, but historically most nominees have been rejected because a confirmation vote failed to yield a majority of support or because there was a clear lack of support for a nominee before a confirmation vote or filibuster even occurred. Using the filibuster to block judicial nominees is a modern tactic that dates to the 1960s when President Lyndon Johnson’s nominee for Chief Justice of the Supreme Court was filibustered. Even though Abe Fortas was already an associate justice on the court, Republicans used the filibuster to prevent his promotion.
Because the use of the filibuster frustrates the majority party in the Senate, the majority party often floats the idea of ending the practice. This plan, called the “nuclear option,” would allow a judicial nominee to advance with a simple majority vote. Reid’s current threat of doing this is nothing new. After Democrats with a minority in the Senate rejected 10 of Republican President Bush’s nominees by filibustering, the 2005 Senate Majority Leader, Republican Bill Frist, threatened to use the nuclear option.
In evaluating whether or not filibustering judicial nominees should be stopped, it is necessary to consider the reasons why the filibuster is used. A functioning democracy is based on the rule of the majority, but also respect for the minority. The filibuster is a minority party’s safeguard against the “tyranny of the majority.” Thus, it can be concluded that using the filibuster to stop a majority party’s appointment of an unqualified judicial nominee is sensible. Also, filibustering to prevent a majority party from appointing ideological extremists seems to be in the spirit of the filibuster power. However, using the filibuster to stop a qualified, ideologically moderate nominee represents a minority party’s refusal to consent to the simple fact that they are in the minority.
To avoid eliminating the filibuster in 2005, a deal was struck by a “Gang of 14” to allow some of President Bush’s nominees to move forward. The deal also created an agreement between the parties to not block future nominees except when involving “extraordinary circumstances.” This suggests that rebuffing unqualified nominees or ideological extremists is still appropriate. Although Republicans did not question Millett’s or Pillard’s qualifications, they did express ideological concerns. Pillard doesn’t appear to be an extremist, but she is certainly a liberal. However, Millett, who has served both Republican and Democratic presidents, is probably as moderate a nominee as can be found. It therefore seems that the phrase “extraordinary circumstances” is as open to interpretation as “Advice and Consent.”
While Republicans are merely exercising their right to block nominees they disapprove of, as Democrats have, if someone as seemingly non-controversial as Millett can’t get confirmed to fill a seat that has been vacant for eight years, who can? An eight year vacancy on the D.C. Circuit Court in which neither a Republican (Bush) nor Democratic (Obama) president can get a nominee confirmed should be a clear sign that the current system is not functioning properly. Or perhaps it is the filibuster that is functioning all too properly.
Under these circumstances, it may indeed be time to reconsider the filibuster. It is, after all, not a constitutionally created device. This does not mean the Democrats should simply eliminate the filibuster for judicial nominees, but rather, the parties should create new rules that allow reasonable nominees to be confirmed by the majority while still respecting the reservations of the minority. Establishing the “extraordinary circumstances” standard in 2005 was a step in the right direction, but clearly a more concrete framework is needed. The filibuster should be a tool to prevent the tyranny of the majority, not a means to create a tyranny of the minority. Any change should be with the intent to solve modern political gridlock over the long-term and not be the work of political expediency in the short-term. After all, the political winds change quickly; had Republicans used the nuclear option in 2005, they'd have prevented their own recent filibusters.
Is it time to change the filibuster rules for judicial nominees? What are some alternatives to the filibuster? Leave a comment.