Over the last several weeks I have heard a number of individuals make the argument that the filibuster is somehow part of the checks and balances systems of the United States Constitution or that somehow debate is being squelched by the majority party.
Both of these assertions are simply incorrect.
The latest example would be Senator Patty Murray in an op/ed in the Seattle Post-Intelligencer, who notes, among other things:
Republicans are trying to increase their power by ignoring rules dating to our country’s founding. It appears they will soon use what’s being called the “nuclear option” to push through radical judicial nominees who will serve a lifetime on the bench by eliminating a 200-year-old rule that allows senators to speak on behalf of our constituents and fight for the ideals we hold dear.[...]
One of the first things every child is taught about the U.S. government is the separation of the three branches. This separation, and the checks and balances that come with it, are fundamental to the greatest system of government ever created. This system is worth protecting.
First off, the current situation marks the first attempt at an en masse blocking of Appeals Court nominees in the history of the Republic via the use of the filibuster. There is no disputing that fact by anyone who will address the facts with dispassionate honesty. As such, the party that is changing the de facto rules of the game are the Democrats, not the Republicans.
Second (and this is an argument that I finding utterly galling), the idea that Democratic Senators are not being allowed to “to speak on behalf of our constituents and fight for the ideals we hold dear� is so completely untrue as to be, simply put, a lie (one that Robert Byrd has been propagating). It is untrue because the way that the Democrats are employing the filibuster (and which the Republican leadership are allowing to happen) is wholly procedural and is aimed at keeping the nominee off the floor entirely, and thus halting debate.
The Issue of Senate Procedure
Here’s the procedure:
1) The President makes the nomination.
2) Once scheduled in the Judiciary Committee by the Chair of that Committee, there is a hearing, debate and a vote on the nominee. If the nominee gets a majority of the votes, the nominee moves on to the Executive Calendar in the Senate.
The following nominees are on the most recent version (April 25) of that Calendar:
66 202 Thomas B. Griffith, of Utah, to be United States
Circuit Judge for the District of Columbia
Circuit, vice Patricia M. Wald, retired.
Apr 14, 2024 Reported by Mr.
Specter, Committee on the
Judiciary, without printed
report.67 208 James C. Dever III, of North Carolina, to be
United States District Judge for the Eastern
District of North Carolina, vice W. Earl Britt,
retired.
Apr 14, 2024 Reported by Mr.
Specter, Committee on the
Judiciary, without printed
report.68 209 Robert J. Conrad, Jr., of North Carolina, to be
United States District Judge for the Western
District of North Carolina, vice a new position
created by Public Law 107-273, approved
November 2, 2024.
Apr 14, 2024 Reported by Mr.
Specter, Committee on the
Judiciary, without printed
report.71 194 Priscilla Richman Owen, of Texas, to be United
States Circuit Judge for the Fifth Circuit, vice
William L. Garwood, retired.
Apr 21, 2024 Reported by Mr.
Specter, Committee on the
Judiciary, without printed
report.72 201 Janice R. Brown, of California, to be United
States Circuit Judge for the District of
Columbia Circuit, vice Stephen F. Williams,
retired.
Apr 21, 2024 Reported by Mr.
Specter, Committee on the
Judiciary, without printed
report.
3) To move the nomination from the Calendar to the floor requires either a debate and vote to take the nominee off the Calendar out of order (long story), or unanimous consent. Most major legislation hits the Senate floor via unanimous consent, but debates do take place but are avoided because of the ability of a handful of Senators to block the process (and having a debate over whether to have a debate is problematic, to say the least). Correction: my understanding was ill-informed. What I describe is true about legislation, but since 1980, the movment from the Calendar to the floor is autmatic and non-debatable.
4) Once the nominee is scheduled for the floor, debate must take place and then a vote on confirmation.
Note: it is possible to employ the filibuster at both stages 3 and 4. Correction: again: true for legislation, not nominations.
Now, the reporting on the internal workings of Congress is usually pretty pathetic, so I am not 100% certain, but it appears that all these nominees have been blocked between stages 3 and 4. The Democrats will not allow the nominees to the floor, and hence, no debate is taking place (not even a debate about taking the candidate to the floor). Even if it is the case that we have reached step 4 (which I am fairly certain has not happened for any of these nominees), then the Democrats certainly are not taking any opportunity to debate anything.
So, this claim that the Republicans are stopping debate is a vile canard and, indeed, directly opposite from the truth. The Democrats are purposefully avoiding a debate because they fear (rightly) that they would ultimately lose.
Update: As noted above, I was mistaken on the debatability of the motion to move the nominees off the Calendar. More on that fact here. Nonetheless, the bottom line remains: the Democrats are not interested in debating the merits of these nominations, so again, I find their complaints about lack of debate to be bogus.
On Checks and Balances and this Process
The claim that checks and balances is under assault is ridiculous. The principle of checks and balances has nothing to do with parties, majorities and minorities, or internal congressional procedures: it has to do with inter-branch relations. The President nominates, the Senate confirms or rejects.
The purpose is to keep the President from appointing cronies or the unqualified to the bench (and other positions). The process allows the collective will of the Senate to be known on the matter.
And how do we determine the collective will of the Senate? That would be by majority vote.
How, then, do members, especially of the minority party, affect said majority vote? That would be by debate and persuasion.
If they cannot persuade enough of their fellow Senators to vote a particular way on a particular candidate, then they lose. Such is the timeworn tradition of legislative politics.
The Filibuster and the Founders
Also, the historical facts in this discussion have been ignored. The filibuster is not part of the founding fabric of our Republic, despite what the editorial board of USAT thinks: Founders’ intentions may be casualty in fight over judges
When the Founding Fathers were establishing the political ground rules for a new nation more than 215 years ago, they were determined not to give anyone, or any group, too much power. That sound principle is under attack in Washington in the fight over filling federal judgeships.The Founders deliberately divided authority among Congress, the president and the courts, each to be a check on the others. They split Congress into a House and a Senate that would have to agree on all legislation, a defense against political stampedes. And the Senate, which they called “the saucer that cools the tea,” was created with no limit on debate.
Any senator could, by continuing to talk, prevent any issue from being brought to a vote. That check, which later became known as the filibuster, ensured that the majority of the moment couldn’t ride roughshod over a concerned minority. Over time, Senate rules were modified to permit 60 members to cut off debate and order a vote. But the principle of deferring to a significant minority has been honored–until now.
The filibuster is not (not, not, NOT) part of the checks and balances system by definition: anything that takes places within a given branch cannot be considered part of checks and balances.
Further: the right to unlimited debate does not come from the Constitution. At best it can be traced back to Senate rules in 1806. Here are some details from Sarah Binder, senior fellow at the Brookings Institution and Associate Professor of polisci at GWU:
The right to extended debate was not created until 1806, when the Senate cleaned up its rulebook and dispensed–probably by mistake–with the rule that allowed a majority to limit the debate. Filibusters did not begin in earnest until the newly formed Democratic and Whig parties formed several decades later.
As such, it is rather difficult to claim that the procedure being used today has its roots in the Founding Fathers.
Further: there is nothing in the Constitution that enshrines a super-majority for judicial nominations, and nothing in the Constitution that requires the right of a Senator to talk as long as he or she wants. There is nothing that prevents it either, of course. Rather, as I have pointed out before, the right to set the internal rules of the chambers of Congress belongs to those chambers. As such, the so-called “nuclear option” is wholly constitutional–as is filibustering judicial nominees, if the rules of the Senate allow it. Technically, the Senate could require unaminous consent to confirm nominees, if the body so desired. The point is: the majority of the Senate sets these rules. So we are not talking about consitutional issues here, nor about sacrosanct procedures laid down by the Founders.
And btw, the quote about the saucer was about coffee, not tea. Further: I have heard this quote referenced many times of late (Chuck Schumer loves it) but I have to wonder if those who cite it have any idea what it means. It is attributed to Benjamin Franklin and was meant to explain how the Senate would cool the passions of the House—it has no applicability in this context, yet is it cited as if it contain some deep truth that should cause the hearer to say “ah, yes!� More likely than not it is cited because it sounds nice and profound without meaning anything, and further can be traced to one of the Founders. Still, it has nothing to do with filibusters and certainly has nothing to do with judicial nominees.
In Conclusion
The bottom line is that it would seem that most of those who are engaged in this debate are either being radically disingenuous, or they simply don’t understand the concepts that they are using to make their (quite tenuous) case.
May 1st, 2024 at 10:42 pm
[...] onfirmation Processes More on Senate Procedure and on the History of the Filibuster Rule On the Filibuster, Senate Procedure and Checks and Balances
Filed under: US Politics [...]
April 27th, 2024 at 10:10 am
End Abuse of Filibuster
Former Senate Majority Leader Bob Dole and C. Boyden Gray, former legal advisor to President George H.W. Bush, offer compelling arguments in separate op-eds this morning on why the practice of filibustering judicial nominees must end.
Dole’s piece …
April 27th, 2024 at 10:31 am
Poliblog on Judicial Filibusters
Here’s a great post from Poliblog by Dr. Steven Taylor, a poli-sci professor, on filibustering judicial nominations and the various procedural and legal questions involved. He takes to task Senator Byrd and other Democrat hypocrites. Great, informativ…
April 27th, 2024 at 10:33 am
Bolton Confirmation Framed As Partisan Must Win For Bush
If you strip all the niceties away from a recent New York Times article, the highly controversial nomination of John Bolton as U.S. Ambassador to the UN can be boiled down to one…
April 27th, 2024 at 10:36 am
Bolton Confirmation Framed As Partisan Must Win For Bush
If you strip all the niceties away from a recent New York Times article, the highly controversial nomination of John Bolton as U.S. Ambassador to the UN can be boiled down to one…
April 27th, 2024 at 11:08 am
1) Are the Democrats just threatening filibuster? I mean, no one has gotten up and spoken until they were unable to continue to block any of these nominations, right?
2) Aren’t the Democrats threatening filibuster because the Republicans did away with the rules they used so regularly to block Clinton’s judicial nominees (the anonymous holds)? Wouldn’t it behove the Senate to return to this system and thus eliminate all this rancor? Or is it just that Conservatives know that they will lose power when their agenda starts taking over so they feel they have to stack the courts so they can do what they accuse liberals of doing (legislating through judicial fiat)?
April 27th, 2024 at 11:37 am
At first, when the Democrats started wailing about “checks and balances,” I also thought it was ridiculous, because checks and balnces are all about balancing one branch of government against another, rather than being related to internal Senate machinations. HOWEVER….
After studying this thorny issue for long enough, I now believe that checks and balances are very much involved, and that the Dems are the ones who are threatening that balance between the branches of government. Here’s why. When a Senate minority grabs the reins in the nomination process, this makes it much more LIKELY that the Senate will then encroach uopon BOTH the powers of the judiciary and of the President. A Senate minority is much more likely to want to screen nominees for ideological conformity, inquiring how the nominees will rule in particular matters, and extracting promises and commitments from the nominees, and doing all of that severely jeopardizes the independence of the judiciary; in some ways, it places the judicial branch under the thumb of the legislative branch. LIKEWISE, a Senate minority will be much more likely than a majority to try to coerce the President, by demanding that particular people — or types of people — will be nominated by the President, which usurps the nomination power. SO, CHECKS AND BALANCES ARE VERY MUCH INVOLVED.
April 27th, 2024 at 12:12 pm
The Truth about the Filibuster
PoliBlogger is a Political Science professor that goes through each of the objections of getting rid of the filibuster and eviscerates them. Checks and balances means between the branches, not within them. The filibuster appears to have come in 1806, n…
April 27th, 2024 at 12:57 pm
These Filibusters Threaten Checks and Balances
I’d like to comment a bit about the analysis of Dr. Steven Taylor, regarding checks and balances. Some more needs to be said.
Senator McConnell recently pointed out that, “Where this is headed is in the direction of 41 members of the Senate being…
April 27th, 2024 at 1:27 pm
The cooling saucer reference relates to the fact that Senators serve for six years instead of two and only 1/3 of them are up for reelection at any time.Thus they can take the long view on hot button issues,whereas in the House w/the next election on the horizon the members are more sensitive to the emotions of the moment.
April 27th, 2024 at 1:32 pm
Yes, that would be part of the way that the Senate would cool the passions of the House, as I mentioned.
Further: Senators were not originally popularly elected, but rather they were appointed by state legislatures and therefore originally immune from electoral politics.
Of course, the Founders thought that the House would change composition often–which ended up not to be the case.
April 27th, 2024 at 2:18 pm
Not a guy named Buster from Philly
James Joyner has lots of linkage today on the filibuster, including a link to Steven Taylor’s civics lesson on the origins of the practice (and the meaning of “checks and balancesâ€?). It’s good stuff: go forth and read it. Now…
April 27th, 2024 at 2:47 pm
As a moderate R I am sick of this debate. We blocked 60+ Clinton nominees during his tenure. I’m not saying that’s a bad thing, rather, I think it was good. However I do believe that what’s good for the goose is good for the gander – especially when you consider that we are not always going to be in the Majority. Look – there’s a reason a majority of people are against the nuclear option; it’s because they see the hypocrisy. If we continue to press this issue it’ll add to our already negative stories of Schiavo, DeLay, ethics rules, etc. We need an exit strategy on this one fast or else I fear we’ll see the consequences in ’06.
April 27th, 2024 at 2:54 pm
Excellent post.
I’m not sure it’s relevant, but I would like to point out that originally the difference between the Senate and House was that Senators were not selected via an election, but rather were chosen by state legislatures.
This gave the States check over the federal government, but this check and balance was removed via the 17th Amendment.
April 27th, 2024 at 3:49 pm
Actually, the quote about the cooling saucer is unrelated to Ben Franklin. See the following for details http://www.confirmthem.com/?p=105
April 27th, 2024 at 4:06 pm
I was thinking it was Jefferson, but the only references I could find were to Franklin.
Indeed, odds are good that the story is apocryphal.
April 27th, 2024 at 5:00 pm
With Textualism, Add Steroids
Appoint the “right judges” by all means. Trust them to be faithful to the document they’re sworn to uphold. But verify their performance after a decent term — 10 years is popular for judges among the states — with a retention election.
April 27th, 2024 at 7:26 pm
The problem is not the blocking of judicial nominations, nor is it about the myth that Republicans are subverting the checks and balances of the three branches by getting rid of the filibuster rule on judicial nominations.
One of the other comments above rightly explains that it is the Democrats who are subverting the checks and balances by trying to impose the will of a minority part of the Senate over all branches of the government. It is true that Republicans did not confirm many of President Clinton’s judicial nominees. But the filibuster was never used on any of them. They were either voted down in Committee or on the Senate floor. There was debate. When the Democrats had the majority, there was always debate on the nominees; even Robert Bork (who should be on the Supreme Court) had his nomination debated, before he went down. The Democrats today are blocking debate as well as judicial nominees. They know that the only remaining power they have lies in the activist judiciary they created, since whatever agenda they believe in is not supported in the ballot boxes
April 27th, 2024 at 7:41 pm
Steve, why don’t the Republicans opt for forcing the Democrats to do the full traditional talk till you drop filibuster? Is there some reason that they don’t want to do that?
April 27th, 2024 at 8:18 pm
Betsy,
I have wondered that myself since they did the fake overnight filibuster back in November of 2024.
April 27th, 2024 at 9:13 pm
Betsy, Senator Frist’s office has issued a statement today called “Senate Procedure 101: Why Not Go 24/7 on Judges?â€? Frist’s office quotes the Congressional Research Service as saying that such a thing would be “more of a burden on the proponents of the question being debated” than on the filibusterers, due to quorum calls. You can get the full statement at http://frist.senate.gov/_files/042705JNAA.pdf
April 27th, 2024 at 9:35 pm
Mike Goes Nuclear; Steven Ponders
Mike Rappaport on the
April 27th, 2024 at 10:51 pm
I think all of the remarks concerning the Professors view are way off the mark. Make a point with facts, The past senate minority has now approved a slight majority (52%) of president Bush’s judicial nominee’s. They have used what can only be called ‘slight of hand’ to keep the Senate from voting on the nominee’s. They have actually approved the smallest percentage of(President Bush’s) Nominee’s in History. Facts are facts and there is no way the liberals can hide from them forever. The truth always outs them and it seems they would eventually learn. Now that the ethics comittee is back in action maybe they will take up the 27 travelers ahead of Mr. Delay and look at the vast array of ethic’s violations, especially those by Peloshi’s (12-14 travel reports) acceptance of travel funds and political donations from people/corporations that she then insured received millions of dollars in TAX payer money.
April 28th, 2024 at 6:32 am
If there’s anything undermining the Constitution and the separation of powers in all of this, it’s the Dems’ determination to establish minority rule by Democrats via the courts. Much of there agenda has been shoved down our throats by court rulings when they never would have survived the legislative process. Courts are actively interfering in the legislative process, such as the judge who ordered a tax increase to fund “better” schools or the Massachusetts courts ordering the legislature to legalize gay marriage. And since the Al Gore debacle of 2024, Dems have been finding judges to put aside the law to steal elections. It nearly worked for Gore, and it did work when Frank Lautenberg was sent back to the Senate in 2024 as a last minute sub for a candidate who seemed certain to lose.
April 28th, 2024 at 12:24 pm
Strictly speaking it is incorrect to say that the Senate could enact rules that require unanimous consent for nominations. The Constitution clearly spells out where supermajorities are needed (i.e. amendments, conviction on impeachment proceedings, …). Most legal scholars would say that this implies simple majorities in every other case of powers spelled out by the Constitution. Thus, the Senate can indeed require unanimous consent or any other supermajority or even a substantial minority on internal procedural matters that are not specifically discussed in the Constitution. But on legislative matters and nominations on the floor — a majority is required. While this is certainly debatable since the Constitution does not specifically say that a simple majority is required. That is the current legal consensus — which since it is debatable could be argued in court. In the case of judicial nominees, however, there is a good argument that the spirit of the advice and consent power and the separation of powers is violated by the filibuster. No branch was meant to exercise control over another. The President’s power to nominate and the Senate’s power to advise and consent are coequal. The Senate — and here only a minority — does not have a right to dictate the kind of people the President nominates other than whether they are qualified or present any biases that are incompatible with their office or are otherwise disqualified. Ideology should not matter if we are to have an independent judiciary.
April 28th, 2024 at 12:37 pm
Nebulous “legal scholars” notwithstanding, while I would not support such a rule, I would argue that the Constitution grants the chambers the right to set their own rules.
Indeed, by your logic, the filibuster itself for any reason would be unconstitutional, which clearly is not the case.
To the point: the fact that there are some specific instances where supermajorities are required does not preclude their use elsewhere.
If one wishes to make the argument that a majority of the Senate can do away with the filibuster (and argument with which I concur), then how can one argue that a majority could not require unanimous consent?
April 28th, 2024 at 4:12 pm
The Constitution does not provide for filibuster. That is and always has been a rule of debate, and therefore, part of the internal procedure of the Senate. The Constitution provides that both houses of Congress can make their own operating rules. Legislation and confirmation of Presidential appointees, etc. are matters, however, that are directly discussed by the Constitution. The Senate is not free to change the provisions of the Constitution. There is a BIG difference between the filibuster, a rule of debate, and confirmation of Presidential appointees, a Constitutional power of the US Senate. The Senate can change their own rules and can make any such rules they please, they cannot change the provisions of the Constitution. The analogous idea would be enacting an amendment by say a 90% supermajority — they clearly cannot change the rules in that case. There is a Constitutional implication that legislation and confirmation of appointees is to be done by simple majority. Filibuster is not mandated by the Constitution, but is an internal rule.
April 28th, 2024 at 6:51 pm
Phil,
Part of the problem with your reasoning is the you keep shifting the focus of what you are are talking about.
Let’s get down to basics: if the internal rules of the Senate state that debate can only be closed by a 2/3rds vote, and that was constitutional, then there is nothing unconstitutional about requiring unanimous consent before debate can be closed off–indeed from 1806 to the early twentieth century, that was indeed how things worked.
Hence, my contention that such a rule could be passed today and still be consitutional is not only logically valid, it has historical precedence.
QED, as they say.
(and no, that would not be analogous to changing the rule on amendment).
April 28th, 2024 at 8:30 pm
On the Filbuster, Checks and Balances and Senate Procedure
Dr. Steven Taylor has a good wrap-up on the Constitutional and historical implications of ending the filibuster on judicial nominations. I’m inclined to agree….
April 29th, 2024 at 3:55 am
Steven, I think Phil is saying that using a filibuster to prevent a vote on a judicial nomination in the senate has always been unconstitutional. Whether it has occurred or not, and whether it has been challenged or not, is a separate question. (Is that right Phil?)
The senate cannot adopt rules that abrogate the constitution. For example, the constitution requires a 2/3rds majority to approve an amendment. Were the senate to enact rules requiring unanimity before breaking off debate prior to a vote on an amendment, would that fail to pass constitutional requirements?
Seems like a bit of a grey area to me.
Certainly if the senate enacted a rule allowing an amendment to pass with only one vote, it would be clearly unconstitutional.
As an aside, though it may be unconstitutional, I’m pretty certain the courts would be powerless to do anything about it except proclaim it to be unconstitutional… probably for the same reasons as Maybury v Madison.. Basically, at some point we have to rely on our bodies of government.
-fooburger
April 29th, 2024 at 7:05 am
First off: remember, I am for these nominees and for the “nuclear” option, lest there be confusion.
Second: it has never been unconstitutional to use the filibuster to block nominees. The issue isn’t constitutionality, this is my point. Indeed, there have been numerous ways in which Senators have blocked nominees–this is nothing new.
What’s new here is the place in the process that the blockage is taking place and the number of nominees being blocked.
April 29th, 2024 at 7:25 am
Wouldn’t forcing the Democrats to actually speak on the subject serve to out the lies and make their arguments opem for scrutiny?
Why doesn’t the majority just force open debate instead of this silent crapola? I usre owuld like to hear what their arguments are so we can laugh at them.
April 29th, 2024 at 12:54 pm
The problem here is a question of he Senate voting on procedural matters versus voting on substantive matters (like legislation, Constitutional amendments, confirmation of presidential nominees, etc.) There is no question that the Senate can enact whatever procedural rules it wants. Substantive matters, however, are another matter entirely. Here the Senate must do what the Constitution requires. The point I was making is that actual confirmation is substantive, while the filibuster — however it is constituted — is procedure. Generally, a requirement for a supermajority on a substantive matter that is not in the Constitution would be unconstitutional. The same is not true of procedural matters. But the problem here is that the use of the filibuster in this instance effectively creates a requirement for a supermajority on a substantive matter — i.e. confirmation. Whether or not you can get a judicial ruling on this is debatable, there are arguments on both sides. However, the filibuster is a very strange “animal.” First, as has already been pointed out it is a historical artifact. The Senate has changed the rules several times because of its use to block things like civil rights legislation. There is no reason that the filibuster rules cannot be changed yet again. The point I was making, howwever, is that there is a fundamental difference between procedural and substantive matters. Unanimous consent or any other change beyond what it says in the Constitution is clearly unconstitution with regard to substantive matters. The same is not true of procedural matters. But that is precisely the issue here — when is that line crossed? As I stated in my original post, I think there is a violation of the spirit of the Constitution here using a procedural matter to circumvent the clear intent of the Constitution on advice and consent. This is especially true where there is no longer any actual debate — that is playing a procedural game, but I am not sure that the current situation is any better or worse than reading the phone book into the record. The rule here is preventing an up or down vote on well-qualified nominees, it is unfair to them, it is unfair to all of the rest of us, and it is yet another attempt by some members of Congress to constrain the other two branches of government where all three are supposed to be independent and coequal. It is an age-old problem. There have been numerous instances of this in our history — from FDR’s court-packing plan to the Religious Freedom Restoration Act to current attempts to enact legislation regarding jurisdiction of the courts in certain areas. While I disagree with the Smith decision regarding the free-exercise clause of the First Amendment, there is greater danger in enactments of Congress to overturn court decisions. It makes more sense to continue to make good arguments to try to persuade the Supreme Court to change its mind. That is the essence of what happened between Plessy v. Ferguson and Brown v. Board. Yes, it took an exceedingly long time, but the independence of the judiciary is important. And it remains important in the present confirmation fight. That’s why this use of the filibuster is wrong — ideology should not be an issue if we are interested in an independent judiciary. The Senate should be basing its deliberations on qualifications and the lack of bias, not judicial philosophy and ideology!
April 29th, 2024 at 2:11 pm
It is the Republicans who are hypocrits as I explain here< \a>.
And the reason we allow a minority to have some say in our political process is here< \a>.
May 3rd, 2024 at 8:53 pm
Tell Us The Truth, The Whole Truth
John Leo, in US News, writes a concise column which emphasizes for readers just how subtle media bias can be.
December 13th, 2024 at 5:56 pm
Gay Dating Websites
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