The Filibuster And The Supreme Court

By Big Tent Democrat, Section Supreme Court
Posted on Sat Nov 08, 2008 at 01:59:43 PM EST
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I was exchanging e-mails with Ed Whelan the other day (yes NRO's Ed Whelan) and I told him him that I would certainly defend the GOP Senate caucus' right to filibuster judges even though I would likely disagree with their criteria for doing so. Ed responded that he would criticize such GOP tactics. I'll do my part here. Via Steve Benen, GOP Senator Jon Kyl says:

Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal. . . . Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

That is absolutely the right of the GOP minority. This is their exercise of the Constitutional advise and consent role. While I disagree with their views on judges, they are Senators and have the right, even the duty, to exercise their Constitutional powers. Now what I want to know is what the Gang of 14 has to say aout this? And I expect to hear no objections to the Nuclear Option, (excuse me, I mean the I mean Constitutional Option from any Republicans now. I certainly will object to it. They can not without exposing their base hypocrisy.

By Big Tent Democrat, speaking for me only

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The Filibuster And The Supreme Court | 25 comments (25 topical)

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Well (5.00 / 1) (#3)
by Steve M on Sat Nov 08, 2008 at 02:15:21 PM EST

There's no need for a nuclear option, since both parties agree that a bare majority of Senators can change the rules at the start of a new Congress. You only need the nuclear option if you want to change the rules in the middle of the game. For precedent, you could look at the opening of the 1995-96 Congress when a couple of Dem Senators proposed weakening the filibuster.

Since the GOP seems to acknowledge a difference between legislative and judicial filibusters, one alternative to eliminating the filibuster altogether (which would definitely be hardball) would be some kind of compromise making filibusters of presidential appointments harder to sustain. If the Republicans object, a collection of their quotes from the nuclear option fight would be quite amusing. The key is that the Democrats aren't flip-flopping from their position on the nuclear option since everyone agrees the rules can be rewritten at the start of a new Congress.

Excellent point (none / 0) (#6)
by Big Tent Democrat on Sat Nov 08, 2008 at 02:19:43 PM EST

I don't really agree (none / 0) (#8)
by andgarden on Sat Nov 08, 2008 at 02:22:16 PM EST

The best substantive point made against the nuclear option was that the filibuster had served for generations as a check on the Congress and the President. That's the reason why most Senators voted against the rule change in the 1990s.


I think Steve's point is different (5.00 / 1) (#9)
by Big Tent Democrat on Sat Nov 08, 2008 at 02:24:25 PM EST

That for posturing purposes, the Dems actually have a defensible positiopn. It would be malarkey, but defensible. The GOP has no position here.

I mean Kyl's statemnent is complete and utter hypocrisy.


: The nuclear option was hypocritical to begin with (none / 0) (#11)
by andgarden on Sat Nov 08, 2008 at 02:25:56 PM EST

considering how many of Clinton's judges they blocked in committee in the 1990s.

There won't be any problems (none / 0) (#1)
by andgarden on Sat Nov 08, 2008 at 02:04:40 PM EST

The Republicans just don't have enough seats to create a fuss. I don't think Specter, Collins, and Snowe are going to filibuster the mainstream judges Obama appoints--though Lieberman might. . .

Kyl is making empty threats.

I would like to hear what the Nuclear Option folks (none / 0) (#2)
by Big Tent Democrat on Sat Nov 08, 2008 at 02:09:41 PM EST

think about it though.


There are a lot of people (5.00 / 1) (#4)
by andgarden on Sat Nov 08, 2008 at 02:16:26 PM EST

who think there shouldn't be a filibuster at all. My feeling is that there probably shouldn't be a U.S. Senate--not in its current malapportioned form, but that as long as there is one, there needs to be a filibuster.

The nuclear option crowd was going for 51% tyranny, which is bad.


I have always favored a judicial filibuster (none / 0) (#10)
by Big Tent Democrat on Sat Nov 08, 2008 at 02:25:43 PM EST

I think there is a good case to be made for eliminating the non-judicial filibuster.

My position is diametrically opposed to the Nuclear Option argument.


: Agreed (none / 0) (#17)
by s5 on Sat Nov 08, 2008 at 05:17:39 PM EST

If the idea is to avoid politicizing the judicial branch, then requiring broad support (rather than 50%+1 support) for a judge is a good start.
But the legislative filibuster makes very little sense. As they say, elections have consequences, and the filibuster provides an artificial boost to the out-of-power party. We already have other checks and balances in government, so let's allow the party in control to implement their agenda and see how it goes. And if it's bad, well, we get elections every two years. To me it seems like if people don't like "gridlock", then getting rid of the filibuster is the way to go.
When Democrats were in the minority, the filibuster barely did a thing to help us. The Republicans were effective at building public support for their agenda and getting Democrats to cave. But will Republicans cave in the face of a public mandate for a Democratic agenda? That's the problem. From what I can see, the filibuster is simply a tool for the Republicans to blame Democrats during elections for inaction.

They don't? Dems are not to 60 or 61 yet, afaik. (none / 0) (#5)
by jawbone on Sat Nov 08, 2008 at 02:17:19 PM EST

Franken might get enough votes from ongoing recounts or Coleman may pull out a victory. Stevenson may yet lose, but he is, amazingly, ahead. (I've read the numbers in Alaska are very weird).

Chambliss is going to get McCain's campaign assistance in his run-off. I doubt Obama will feel it is the politic thing to do to campaign for the Dem, given that he is the president-elect of all the people and it might damage his bipartisan appeal. I say Chambliss stays in the Senate. But strange things might happen....

The Dems are at 57 now and would have to take all three of the above to reach 60. And I don't know if Lieberman is counted as a Dem in the NYTimes total, but most do count Sanders and Lieberman (what an ideological spread!) as "caucusing with" the Dems.

And Lieberman cannot be counted on.


: Counting Joe, we now need (5.00 / 1) (#7)
by andgarden on Sat Nov 08, 2008 at 02:20:41 PM EST

to peel off only three Republicans to break a filibuster. I named the three.
If Joe becomes a problem, then we'll have to do some more work. But I still think Stevens and Coleman might lose, and I don't think the Republican are going to get very far filibustering Obama's appointments.

Republicans don't do that anyway (none / 0) (#21)
by BrassTacks on Sun Nov 09, 2008 at 12:27:16 AM EST

They approve whoever the President puts forth. If that weren't true, we wouldn't have Ruth Ginsberg on the court. Republicans won't be a problem for our judges.


Hmm.. the filibuster isn't exactly a (none / 0) (#12)
by ThatOneVoter on Sat Nov 08, 2008 at 02:51:02 PM EST

constitutional option now, is it?
It would be perfectly constitutional to abolish the filibuster.

Quite true (none / 0) (#13)
by Big Tent Democrat on Sat Nov 08, 2008 at 02:57:58 PM EST

It is also perfectly constituional to retain it. You misunderstandf the "Constitutional Option." It argues that the filibuster of judicial nominees is UNconstitutional.

Perhaps you should read about a subject before commenting on it.


Well, perhaps you should separate (none / 0) (#14)
by ThatOneVoter on Sat Nov 08, 2008 at 03:04:11 PM EST

the constitutional issue of advise and consent with the real problem, which is the filibuster, which is not a constitutional power. I think it would add clarity to the discussion. Does the GOP have a constitutional right to filibuster judicial nominees (or anything, for that matter)? No.


: A real problem for who? (none / 0) (#16)
by Big Tent Democrat on Sat Nov 08, 2008 at 03:51:08 PM EST

Clarity is not a problem for those who are familiar with the debate.

Filibuster and Lieberman (none / 0) (#15)
by nellieh on Sat Nov 08, 2008 at 03:39:20 PM EST

I have already contacted my Senator (the other one isn't mine) about the filibuster. My suggestion is to make the objecting side actually FILIBUSTER! All they have to do is threaten and the bill gets shoved aside. I also reminded him of the "nuclear option.' I don't want the nuclear option ever but I do want a real filibuster. Not just have to threaten it. Also, off topic. The Democratic Caucus meets later this month. They should vote Lieberman off the island. They will break for Thanksgiving then again for Christmas. When they come back in Jan. they will have a majority with out him. It's time that slimy lizard crawls back into his hole. If he comes out with the Republicans, he will be further diminished and irrelevant.

Hmm (none / 0) (#18)
by kaleidescope on Sat Nov 08, 2008 at 06:53:29 PM EST

I don't think the filibuster is part of the Constitution. The Constitution says it only takes 50% plus one vote for legislation (or consent to an appointment) to pass. The filibuster is a Senate rule; one originally intended to hobble the Senate.

It will be interesting to see how effective Republicans are in using the filibuster now that they are a much diminished minority and Democrats control the executive branch.

: Don't worry about it, (none / 0) (#22)
by BrassTacks on Sun Nov 09, 2008 at 12:29:32 AM EST

Republicans don't filibuster, and they certainly don't filibuster judges. Not their style. They have always approved Judges appointed by democrat Presidents.

I don't think we have to worry (none / 0) (#19)
by jen on Sat Nov 08, 2008 at 07:15:16 PM EST

about Obama nominating anyone the Repubs won't be perfectly pleased with. All that bi-partisanshippyness and all. There are very good reasons he was shoved down our collective throats.

: When will Obama do that stuff? (none / 0) (#23)
by BrassTacks on Sun Nov 09, 2008 at 12:31:20 AM EST

I haven't seen any of that from him. Seems typically Washington poll. Rahm Emmanuel is perfect example. Nothing pi partisan about Rahm! He'll ram legislation right down the republicans throats!

what we really should do -- pack the Court (none / 0) (#20)
by sef on Sat Nov 08, 2008 at 07:42:26 PM EST

What we really should do is not worry about new appointments and change, as has been done since the first days of the Republic, change the total number of judges on the Court. There is nothing magical about 9, there is something sacred about 12. Add 3 more judges and an appropriate number of lower federal court judges, do it as part of the appropriations process and be done with it. Even with 3 new judges on the SCOTUS the total number of GOP appointees would be a majority.

The biggest regret I have of the 2006 cycle is that Senator Kyl didn't lose his seat.

: Not gonna happen (none / 0) (#24)
by BrassTacks on Sun Nov 09, 2008 at 12:32:27 AM EST

Obama would need more than support of 52% of the people to even THINK of packing the court.

: One would usually want (none / 0) (#25)
by jar137 on Sun Nov 09, 2008 at 02:29:09 PM EST

an odd number of justices to limit the number of locked decisions. The SC since at least 1991 (see Casey) has been fractured on a number of issues, resulting in decisions in which only certain parts are the opinion of the court.