March 21, 2005, 8:42 a.m.
Will on Filibusters
Considering a column and a battle to come.

In his Sunday column, George Will makes his most comprehensive argument yet against Senate Republicans' modifying the filibuster rule to prevent its use against judicial nominees. I respond to some of his major points below.

Will writes:

Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Of course, this begs the question. If a majority of the senators decide that they want to change one of their rules to prevent the filibustering of judicial candidates, then the Senate is, as Will puts it, "completing the staffing process that the president initiates." Nobody is denying the Senate's role, just what it's doing with that role, and its impact on presidential as well as senatorial powers.

Will writes:

Some conservatives say the Constitution's framers "knew what supermajorities they wanted" — the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings."

Actually, Will conflates two points here. The Constitution is a governing document that attempts to lay out the powers of the various branches and levels of government. It stands originalism and limited government on its head to argue that where the Constitution is silent, the federal government (including the Senate) is free to act. Will seems to have adopted Sen. Joe Biden's position, or worse. When Biden (D., Del.) was asked if he'd support Justice Antonin Scalia for Chief Justice, Biden responded that he could not, as Scalia doesn't believe in the Constitution's "unenumerated powers."

The Constitution is silent about a lot of things, such as abortion and same-sex marriage. To argue that its silence is not limiting assumes it's not limiting to any branch of the federal government, including the judiciary. In fact, the Constitution says very little about the power of the judiciary, and its silence has been used by judicial activists to set policy throughout our society. Here, the Senate minority's conduct is actually worse than exercising an "unenumerated power." It is affirmatively denying the full Senate the opportunity to exercise an enumerated power — its advice-and-consent function. If the majority party in the Senate does not wish to exercise that power, it's not compelled to do so. But if it does wish to exercise that power, which is the present case, then the majority can change the rule by which the minority is thwarting the majority, i.e., the filibuster rule.

As to the second point — that the Constitution's authorizing the Senate to set its own internal rules empowers the Senate to impose a supermajority requirement on itself — this has always seemed an odd argument to me. What would Will say, I wonder, if the Senate adopted rules that conflict with some explicit provision of the Constitution? If I follow his logic, the Senate's power to set its own rules, whatever the rules, is given as much weight as explicit constitutional provisions. In any event, if the Senate majority believes the minority's imposition of a supermajority violates the Constitution, and then acts to change the rule, in the end that's all that matters.

Will writes:

Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

There is certainly no requirement that the full Senate vote on any nominee. I suppose there's no requirement that the Senate conduct business of any kind. I don't know where this gets us. However, if the majority wants to exercise its constitutional authority, and is prevented by the minority, it seems obvious that the Senate majority is being denied the right to perform its constitutional function. It need not cooperate with the minority's political objective. That's the entire point. That's why the demands for modifying the filibuster rule. This is a right (or power) that belongs to the Senate majority, which speaks for the Senate.

Will writes:

Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms — separation of powers, bicameral legislature, etc. The filibuster is one such mechanism — an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

Some conservatives, like me, are more interested in discerning actual constitutional powers than arguing for "minority assertion." As Will writes, the Constitution explicitly provides for separation of powers, a bicameral legislature, etc. It is a document of enumerated authorities. The Framers' main concern was with the concentration of power in the hands of a few people or entities. Hence, divided government, in which each branch jealously guards its own power. The filibuster has nothing to do with this. Moreover, while the filibuster is used by a minority to slow or thwart a majority, Will's argument assumes that the minority is the group attempting to "slow or stop government." In fact, it is the minority, as the Senate is presently configured, which seeks to expand the power of government by preventing the confirmation of originalist judicial candidates. And, when instituted by the current minority in the legislative context, it would be used to prevent spending and tax cuts, both of which limit government.

Indeed, throughout this debate, the advocates of the filibuster have succeeded in portraying it as a great deliberative tool that has been used for good — such as stopping a misguided majority. My guess is it has been used for good and bad, but I've yet to see its defenders present any careful and comprehensive analysis of its use over history. Therefore, we need not accept Will's contention on face value. I do recall the filibuster was used, albeit unsuccessfully, by segregationists like Senator Robert Byrd to try to stop the passage of civil-rights legislation.

Will writes:

How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

This question assumes too much. First, I can't imagine any nominee, including the most activist candidate, testifying that he supports a constitutional right to same-sex marriage. We've witnessed enough such hearings to know that nominees won't say such things for a variety of reasons. Second, I can't imagine any president nominating a candidate who had a record of supporting same-sex marriage. Third, it can just as easily be argued that the Democrat filibuster is preventing candidates who oppose same-sex marriage from ascending to the federal bench. The argument against filibustering judicial candidates, from the perspective of those of us who believe it's unconstitutional, has nothing to do with any particular or potential judicial ruling and outcome.

Will writes:

And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations — and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

The Panama Canal Treaty is a perplexing example as it proves the opposite of Will's point. It was ratified by a two-thirds vote of the Senate, as the Constitution requires. And since a two-thirds vote would have been enough to defeat a filibuster, what's the point here?

Of course Senate Democrats, regaining the majority, might end the rule even as used against legislation. They might do any of 100 things. But I await the evidence from the filibusters' proponents that even eliminating the rule entirely would result in unwelcome consequences. I note that the House of Representatives operates without a filibuster rule.

Will writes:

Exempting judicial nominations from filibusters would enlarge presidential power. There has been much enlargement related to national security — presidential war-making power is now unfettered, Congress's responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The president's power wouldn't be enlarged. Until this president's election, no president has faced filibusters, or threatened filibusters, against ten of his nominees, with more to come. We're talking about returning power to the presidency that existed for all but four years of our history — prior to the election in 2000 of George Bush. As for presidential war-making power, which has nothing at all to do with the filibuster debate, Congress still retains the power to cut off funding for any war, as it did in Vietnam. As for Congress declaring war, the Constitution is silent on exactly how Congress is to make such a declaration. Respecting the Iraq war, Congress adopted a joint resolution authorizing the president, on his own discretion, to make war. I see no substantive difference between a declaration and resolution in this regard. Apparently neither did Congress.

Will writes:

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.

Of course, if the Republicans elect 60, 65, or 70 senators, they can defeat the filibuster. And if they do so each election cycle, then the minority will be too small to conduct filibusters. But what happened to Will's point about the importance of "minority assertion"? Is it only important when the minority consists of, say, 41 senators, the current number needed to conduct a filibuster? And why is that? Early in the Senate's history, a single senator could conduct a filibuster and block the Senate's business. Now, that was true "minority assertion."

The problem today is a systemic one, i.e., the misuse of a Senate rule to block judicial nominees from receiving the consent (or rejection) of the full Senate. Each of these candidates reportedly has enough votes for confirmation, but for the unprecedented use or threat of filibusters. The majority has every right and reason to change the rule.

— Mark R. Levin is author of the bestseller Men in Black: How the Supreme Court is Destroying America.