In Defense of the Filibuster

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Ms. Mariner is a FindLaw columnist and human rights attorney.

When George W. Bush was asked about the federal judiciary during the 2000 presidential campaign, he cited Antonin Scalia and Clarence Thomas as the Supreme Court justices he most admired."I don't believe in liberal, activist judges," he later explained."I believe in strict constructionists, and those are the kind of judges I will appoint."

Not without good reason, Bush's preference for Scalia and Thomas was considered highly revealing. The two most right-wing members of the Supreme Court, Scalia and Thomas stand out as the court's most zealous opponents of abortion rights, most unquestioning supporters of capital punishment, and most explicit advocates of resurrecting limitations on federal power that date back to the pre-New Deal era. And, inevitably, both Scalia and Thomas were members of the five-vote Supreme Court majority that ensured that Bush gained the presidency.

Scalia, whose judicial opinions refute the assumption that right-wing judges are not"activist," was the author of the Supreme Court ruling that struck down parts of the Brady handgun legislation. Thomas, who has a similarly odious string of court opinions to his credit, is perhaps even better known for his concurrences and dissents.

On those occasions where Thomas finds it necessary to write separately--to give full and undiluted expression to his views--it is typically to press for some radical limitation on basic rights. Hence his 1992 dissent in an Alabama prison case, in which he argued that the Eighth Amendment only applies to sentencing decisions and is of no help to inmates facing physical abuse at the hands of their jailers.

Ditto for Thomas's 1994 concurrence in a Georgia case involving racial discrimination in political representation, in which he attacked the 1965 Voting Rights Act. And more of the same in a chilling duo of cases, decided in 2001 and 2002, in which Thomas expressed support for enforcing the death penalty even though juries were never informed that the defendant would be ineligible for parole if given a life sentence.

That Scalia duplicates and Thomas clones might end up filling federal court vacancies is thus a topic of enormous consequence. While a democratic Senate acted as a safeguard against this possibility--witness the rejection of nominee Priscilla Owen, who had been named for a seat on the U.S. Court of Appeals for the Fifth Circuit--that protection is now gone.

From now on, with the incoming Republican majority in the Senate, it will take a Democratic filibuster to prevent the confirmation of President Bush's most extreme judicial nominees. But it must be emphasized that in such dire cases, a filibuster--by which a minority of forty-one senators can block an appointment to the bench--is justified, reasonable and necessary.

History of the Filibuster

The filibuster has a long history in the Senate, not all of it honorable. During the nineteenth century, after the abolition in 1806 of a procedure known as the previous question motion, a single obstinate senator could hold up legislation endlessly by filibustering.

It was only in 1917 that the Senate adopted Rule 22, establishing a procedure by which a supermajority could invoke cloture and end a filibuster. As currently written, the rule requires that sixty senators vote in favor of cloture for the vote to succeed.

Given the difficulty of distinguished extended debate on bills from real filibusters, it is not known exactly how many times the filibuster has been used. It is undisputed, however, that the use of the filibuster increased dramatically in the second half of the twentieth century, as did reliance on cloture votes to end filibusters.

According to a 1995 survey published in the Brookings Review, there was an average of one filibuster per Congress in the 1950s, eleven per Congress in the 1970s, and nineteen per Congress in the 1980s. The 1991-92 Congress, the last one counted in the survey, saw a total of thirty-five filibusters.

But frequency is only one measure of the filibuster's use; equally significant is the purposes for which it has been employed. In the 1950s, during the country's long and arduous effort to enact legal protections for civil rights, the filibuster was the nearly exclusive purview of Southerners seeking to block such legislation.

In recent decades, in contrast, the filibuster has proved to be a versatile tool, used in a many different circumstances. Most notably, for present purposes, it has been employed by Republicans and Democrats alike in efforts to block the confirmation of judicial and executive branch appointees.

Although no judicial nominee for a lower court appointment has ever been rejected due to a filibuster, the mere threat of filibustering may have moderated the appointments process by encouraging the nomination of less extreme candidates.

At the Supreme Court level, a few prominent filibusters have failed, but one was successful. Abe Fortas, nominated by President Lyndon Johnson to head the Supreme Court, was defeated by a Republican filibuster in 1968 because of his activist stand on civil rights issues. After his supporters failed to win a cloture vote, Fortas's nomination was withdrawn.

The Necessary and Legitimate Filibuster

Currently, there are almost eighty vacancies within the federal judiciary, and another twenty or so will probably open up over the course of the coming year. Perhaps more significantly, both Chief Justice William H. Rehnquist and Associate Justice Sandra Day O'Connor are expected to retire in the near future.

With forty-nine Democrats in next year's Senate, the votes exist, in theory, to win a cloture vote on a filibuster, and thus to block a judicial nominee. But whether the option is possible in purely practical terms--it obviously is--does not settle the question of whether it is a legitimate method of handling an objectionable nominee.

The use of the filibuster is undemocratic, and unquestionably so, to the extent that democracy is equated with simple majority rule. But if democracy is seen as a more complex process in which minorities, too, deserve a voice--and which even recognizes that public officials who belong to a political minority may nonetheless represent majority views on certain issues--then filibusters may have a legitimate role to play.

Because of its potent nature, the filibuster is a means not simply of counting heads, but of assessing the intensity of views on a given subject. Simply put, the use of the filibuster raises the stakes in a debate, signaling to the public that an issue, or a nominee, is worth getting exercised over.

An obstructive filibuster, unsupported by popular opinion, is obviously a dangerous game. Were the Democratic minority to start cavalierly holding up Republican legislation and blocking Bush administration nominees who do not fall into the extremist category, it would likely pay a heavy price in the next elections.

Because the potential costs of an incautious filibuster are so obvious, the Democrats have opted not to filibuster even in situations where the temptation to employ the tactic must have been strong. (To cite a recent example: there was no filibuster during the battle to confirm Attorney General John Ashcroft, an extremist by any measure, although if the anti-Ashcroft contingent had held together, the appointment could have been blocked.)

But an extremist judge, even more so than an extremist attorney general, merits a defensive filibuster. Unlike members of the executive branch, who leave office with the President who nominated them, if not before, members of the federal judiciary are there for life. Indeed, through the jurisprudential doctrine of stare decisis, a judge or justice's repugnant views may far outlast his or her own tenure in the judiciary.

If the ugly legacy of the most objectionable rulings of the 1940s Supreme Court is not enough to remind Democratic Senators of the need to act as a moderating force against far right judicial nominees, they should consider the many fundamental issues with which the courts are currently grappling: racial discrimination, abortion, the line between security and privacy in the fight against terrorism, the death penalty, and environmental regulation, among others.

No More Scalias

To mount a filibuster, in the face of a likely cloture vote by the opposing side, is a daunting task. Even with extremist nominees, moreover, such an effort may not succeed. Indeed, the last time that a filibuster over a Supreme Court nomination was terminated with a cloture vote was in 1971, when William H. Rehnquist was named as associate justice to the Court.

The Senate may not be able to block every far right extremist that President Bush tries to appoint to the judiciary. But if another Rehnquist is to join his brethren on the Supreme Court--or another Scalia, or another Thomas--the Senate's moderate members should at least put up a good fight.

Courtesty of http://writ.news.findlaw.com

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andy mahan - 9/18/2006

I suppose practically the senate rules allow for the Dems to filibuster. Yet I suspect that it will be harder to pull off with 55R to 45D. Given the accepted perception (true or not) of Daschilian obstuctionism they'd better be able to articulate a pretty damn good reason. Tuesday's election was no endorsement of liberal politics, quite the contrary. A protracted filibuster would result in further Democrat losses in Congess, I predict, because the people will rightfully perceive that it's representatives aren't doing much representing.

andy mahan - 9/18/2006

True, and it was a mistake. I want my government to come to a screeching halt when they can't dispose of the issues at hand. Anyway you are right that the public usually doesn't know. But if there is a campaign to let them know, (Estrada) they would. Making legislative obstuction public knowledge will become even more common in my opinion because it is good politics.

Michael Dunphy - 5/27/2005

Ms. Mariner is incorrect when says that the debate over William Rehquist's appointment to the Supreme Court in 1971 was terminated with a cloture vote. In fact, the cloture vote failed 54 to 42. Nevertheless, Mr. Rehnquist was confirmed.

A cloture vote does not necessarily mean that opponents of a nominee were attempting to prevent a vote altogether. Sometimes it just means they were delaying a vote because they had more to say.

George Antrobus - 11/7/2004

The article does not address the change in Senate rules sometime in the 1970s that made filbusters more common. Before then once a matter was before the Senate debate could continue until a cloture resolution passed. Thus no other business could be addressed until the matter before the Senate was either voted on or withdrawn. So you had the occasional MR. SMITH GOES TO WASHINGTON filibuster, but they were rare because you had to be willing to make a train wreck of the Senate's schedule and bear whatever consequences that brought. After the rules change a filibuster simply became a procedural device requiring 60 votes before a final vote on any matter could be taken. Cloture votes could be taken from time to time as the Senate went about other business. No train wrecks. And, contra Mariner, I don't beleive there is a heavy price to be paid for frivilious filibustering because the general public is not really aware of what is going on. They just know that a vote on a legislative proposal or an appointment "hasn't come up" for a final vote for some parliamentary reason.

BTW, in the first two years of Clinton's first term, when he had a Democratic majority in both houses the Republicans used the filibuster to stop Democratic initiatives in the Senate time and time again.

John H. Lederer - 11/4/2004

The theme of this article is "filibusters of nominations are ok because they obtain the result I want."

The core issue in filbustering judicial nominations is what is meant by :

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Can the "consent of the senate" mean something else than a majority of the senate? Could the Senate, for instance, decide on an internal rule to grant consent by a favorable vote of 1/3 of the senate?

mark safranski - 12/15/2002

Sorry, he isn't. And for that matter neither is Thomas or former Justices on the opposite end of the spectrum like William O Douglas or Brennan. A lot of people once called Earl Warren an extremist too and demanded his impeachment,if you recall. Just because a judicial philosophy or a particular ruling tilts against one's preferred policy choices doesn't mean that a Justice is an extremist or an idiot. This " extremist " business is pure spin to discredit by repeating an invective instead of engaging in an intelligent argument.

Hugh Powers - 12/13/2002

When I read your second paragraph, I thought sure you were going to end it by listing Scalia as one of today's most arrogant extremists. He is such a blatant extremist that his mug may well show up in new dictionaries next to the word "extremist."

Bill Heuisler - 12/12/2002

Hi Oscar,
With Lott's bigoted apostasty still jangling the ether, arguing States Rights can be risky, but "States Rights" is merely a misnomer for "less burdensome than Federal". Do we care more about individual freedom in this country or individual rights? Or are they both the same, depending on whose?
Micro or macro? My vote's with Jackson.
FDR's Liberal philosophy was embodied in a 1938 statement, "The liberal Party insists that the Government has the definite duty to use all its power and resources to meet new social problems with new social controls - to insure to the average person the right to his own economic and political life, liberty and the pursuit of happiness."
Note the "meet new social problems with new social controls." Where does it end? If the Supremes do not control the Federal Government and the Congress considers itself the pork-fed handmaiden of Federal largesse, where is the Check or Balance?
The hand of State coercion is less onerous because dissenters can move to other jurisdictions; the Federal hand squeezes all. Ask yourself, is it easier to remove/elect a State Legislator than to remove/elect a Fed? Why should Roe vs Wade or Brady not be adjudicated in the states? Lots of oxen gored differently.
Lastly, who the hell does Mariner think she is by advising the Dems to end-run the legislative-appointive process? I voted for W. Why should my rights be finessed?

Oscar Chamberlain - 12/12/2002

Hi Bill

I go back and forth on when to pull out terms like "extremist" so I will let that pass.

However, about the purpose of the Supreme Court. Many early Federalists--including John Marshall--saw the Court's main purpose as limiting the power of the state governments and increasing the power of the national government. That's one reason Jefferson (and, later on, Jackson) disliked Marshall.

That does not totally invalidate your point. Marhall and like-minded justices like Joseph Story limited the states in the econmic realm because they saw the states as unfairly limiting the rights of men of property and contracts to exploit said property and contracts. However they did this in part by arguing that most economic regulation was ultimately in the hands of Congress.

Therefore, Mariner has a point. The national government, sometimes the Court, sometimes the Congress, has often been the upholder of rights in the face of state tyranny. What changed, due in part to the 14th amendment, was the Court's shifting its focus away from economic rights to other individual rights, in particular the rights to free speech and freedom of action.

These were often hampered by state laws--for example restricting the actions of individuals by segregating them or by restricting both action and speech by suprressing the spread of information on birth control. In both cases, and many others, the Court played a crucial role.

Can the national government be a source of tyranny? Of course. Just ask Japanese Americans; just read the Patriot Act; just think of John Poindexter having all the data about anyone he wants. (Arrgh!!!)

But in our history, a great deal of tyranny has come from state governments reflecting the will of the state majority. Limiting that tyranny required strengthening the national government, for better and for worse.


mark safranski - 12/10/2002

Justice Scalia is a conservative, albeit with a sharp tongue, not an extremist and the Senate that confirmed his appointment agreed ( check the vote ).

A genuine extremist would be someone so dissatisfied with our Constitutional system that they would advocate " solutions" in conflict with fundamental tenets of that document - Federalism, Separation of Powers, Checks and Balances, the Bill of Rights. An extremist would propose ideas that guarantee results at odd with democratic elections and standard legal procedures - I can think of a number of such characters, the Florida Supreme Court, Gore's 2000 legal team, Catherine MacKinnon, Lani Guinier and anyone advocating Critical Theory. But Justice Scalia ? No.

Bill Heuisler - 12/10/2002

Ms. Mariner,
You commit moral confusion and Constitutional blunder in one bizarre sentence:
The confusion - "Scalia and Thomas stand out as the court's most zealous opponents of abortion rights, most unquestioning supporters of capital punishment..."
Make up your mind, kill or not. Spare criminals and not human fetuses? The innocent have fewer human rights than the guilty? Human Rights Advocates might deign to differentiate...or care.

The blunder - "...and (Scalia and Thomas are) most explicit advocates of resurrecting limitations on federal power that date back to the pre-New Deal era."
Are you really an attorney? The Supreme Court's mission is to limit Federal Power. In all human history intrusive government has taken more rights from more individuals than any entity.

Later, your Human Rights mask slips even further:
"Scalia was the author of the Supreme Court ruling that struck down parts of the Brady handgun legislation. Thomas, who has a similarly odious string of court opinions to his credit..."
Odious? The Brady Bill restricts individual human rights and increases government interference. In your political circle is it odious, or hateful, to restrain government? Probably.
From the beginning, all the great fights for human freedom have begun with the individual. You seem to represent the State, Ms. Mariner. In my opinion, posing as an advocate for Human Rights while promoting Big Government is truly odious.
Bill Heuisler