Although democracy typically relies on the rule of the majority, the United States Senate is the rare democratic institution in which the minority can prevail. In the last two weeks, Republicans in the Senate, who are the minority party, used filibusters to block President Barack Obama’s nominations of Patricia Ann Millett and Nina Pillard to fill a vacant seat on the U.S. Court of Appeals for the District of Columbia. For a nominee to win a confirmation vote, a simple majority is need whereas to overcome a filibuster, a three-fifth majority is required. Thus, filibustering allows a party with a minority in the Senate to obstruct the will of the majority. In response, Democratic Senate Majority Leader Harry Reid has floated the idea of ending the filibuster so Democrats can approve presidential nominees by a simple majority vote. Despite the Democrats’ outrage that filibusters prevented votes on the two nominees, they used the same tactic when the roles were reversed in 2005. And correspondingly, the Republicans who had a majority in the Senate at the time discussed the possibility of changing the filibuster rules.
According to the Constitution, the president has the power to nominate federal judges, and the Senate has the power to give “Advice and Consent.” Like many other phrases in the Constitution, exactly what advice and consent means has been a long-standing point of contention. Some judicial nominees have been thwarted because they lacked the necessary qualifications to do the job. Such was the case when President James Madison’s nomination of Alexander Wolcott was rebuffed in 1811. More recently, when President George W. Bush nominated Harriet Miers, members of both parties expressed concern about her lack of experience and knowledge of the law. Other times, qualified nominees have faced opposition because of their political views. This reason for rejection dates to 1795 when President George Washington’s Supreme Court nominee, John Rutledge, was halted because he opposed a treaty that Federalists in the Senate supported. In modern times, the Democrats successfully opposed Republican President Ronald Reagan’s Supreme Court nominee, Robert Bork, because of his right-wing judicial philosophy.
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.
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.
RSS Feed
