Network News

X My Profile
View More Activity

Filibustering the court (or not)

Thumbnail image for filibusters-1102.gif

Watching the debate around the possible filibustering of the president's next Supreme Court nominee has been interesting: Consensus is that a filibuster on a Supreme Court nominee is less likely than on major pieces of legislation. In fact, later today Senate Democrats are breaking a filibuster on an extension of unemployment benefits.

This is exactly the opposite of how you'd think things would go: Supreme Court appointments are good for a lifetime. The costs of a mistake are very high, and the capacity to correct it almost nonexistent. Legislation, by contrast, can be overturned whenever Congress decides to overturn it. Filibusters actually make much more sense against judicial nominees than against legislation. But where the Senate's culture has changed to accept constant filibusters against legislative initiatives and low-level appointees, it hasn't come quite as far on Supreme Court nominees.

That may change in the near future. It may even change during this debate. But the fact that filibusters aren't yet automatic against lifetime appointments to the Supreme Court is yet another reminder that they've only recently become automatic against everything else.

Photo credit: Norm Ornstein/The American.

By Ezra Klein  |  April 12, 2010; 3:32 PM ET
Categories:  Senate  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati   Google Buzz   Previous: Why Americans are angry
Next: Reconciliation

Comments

Do Republicans really want to face another failed filibuster? There best hope would be a crazy-controversial, far-left nominee they could filibuster. Then, if the filibuster failed, they got credit for trying. If it succeeded, all the better.

A more moderate candidate they could go for presents something of a political problem. Either they try and paint the more moderate candidate as a left-wing lunatic, or the grudgingly agree to let them have the up-or-down vote. The 2nd is political more difficult, but even the 1st is of limited value, if the nominee doesn't have a long tradition of praising Mao and condemning the United States.

Posted by: Kevin_Willis | April 12, 2010 4:08 PM | Report abuse

Please...please....PLEASE don't complain about process after the HealthCare bill.

Posted by: WrongfulDeath | April 12, 2010 4:14 PM | Report abuse

They key here is whether individual Republican senators look like they'd shy away from a filibuster of a moderate liberal. Since all the prime candidates seem to fit that label, you have to wonder if this will be all smoke and no fire. The Sotomayor opposition was similarly restrained, despite all the buildup.

Posted by: etdean1 | April 12, 2010 4:37 PM | Report abuse

Just out of curiosity - any information on what party was in the majority/by how much during those spikes?

My bias is to suspect that the GOP is more likely to filibuster than the Democrats, but that's a bias and it would be interesting to see it verified or debunked.

In the neither here nor there - process during the healthcare debate? I find the complaint amazing after the sheer determination to try to reach across the aisle to the GOP, only to be vilified and lied about. Conservatives have entitlement issues.

Jonnan

Posted by: Jonnan | April 12, 2010 4:38 PM | Report abuse

in all fairness, of COURSE the GOP will (and must) attempt to obstruct any appointment the POTUS makes. Even if that appointment were someone like, say, Anton Scalia. It's important in advance of the November mid-term elections to damage the credibility and effectiveness of the POTUS (and by reference, the Democrats) at any and all cost to the American public. Like it or not, this is what we've come to.


If you're tired of lies and spin, and want to look at FACTUAL politics, go to http://nikflorida.org and follow the links.

Posted by: nikFlorida | April 12, 2010 4:41 PM | Report abuse

As I replied to your tweet earlier: This is not all that surprising--it's a structural constitutional matter. The President has the appointment power, which gives the Executive the initiative in selecting candidates for a Court that can't really spare vacancies for very long. So, presuming the President can always put up ten people in a row of more or less the same ideological stripe (irrespective of ... See morewhich party has the White House), and given that it is in everybody's interest to keep the Court functioning, there just isn't a good justification for filibustering unless a person truly represents an extreme of incompetence, corruption, or ideology.

Legislation, however, is a Congressional initiative, and so one loses the case for deference to another branch (the principled case or the practical case) and filibustering a bill is just an entirely different question.

I would distinguish the more analogous case of filibustered executive appointments to the executive branch on the grounds that they are not necessary to the proper functioning of a branch of government--people can serve in the interim, people can be named during recess (Pat Buchanan recommended a recess SCOTUS appointment to Nixon, but I don't think it's otherwise been done), etc.. So again, the structural principles of deference are not in the same high relief when then the practical consequences of blocking a nominee are lower.

I would add that, after Sotomayor (and Breyer and Ginsburg) we may safely say that SCOTUS nominations are one area where the GOP has so far taken a much higher road than the Dems, despite the absurd lengths to which the latter have gone to smear folks. The Alito hearings spent hours (esp. the late Sen. Kennedy) on total non-issues like his alleged breach of ethics in not recusing on a case dealing with Vanguard, for instance. Or the willful distortion of opinions to pretend they were about things they were not about. This could end at any time, of course. But I think Sotomayor was very well treated, whereas Justice Alito and (to a lesser extent) Chief Justice Roberts (to say nothing of the shameful treatment of Robert Bork) had to endure absurd distortions of their records by Senate Democrats. Still, even the Ds didn't filibuster.

Posted by: FrBill1 | April 12, 2010 4:50 PM | Report abuse

When Scalia was nominated, he was NOT filibustered.

So, basically if Obama appoints a person who is the liberal equivalent of Scalia, that person is BY DEFINITION not extreme enough to justify a filibuster. If Republicans filibuster someone who is less liberal than Scalia is conservative, they are doing it for reasons other than the inherent qualities of the candidate. They are doing it for external reasons.

This is important to note. If Scalia wasn't extreme enough to be filibustered, neither is his liberal equivalent.

Posted by: theorajones1 | April 12, 2010 4:52 PM | Report abuse

I'll add that some notable names -- C. S. King among them -- decried the Democratic party's treatment of Justice Alito during his confirmation hearings. Justice Thomas faced similar scathing opposition.

Judiciary hearing transcripts (1971- present) are available at http://www.gpoaccess.gov/congress/senate/judiciary/scourt.html for those who want to read the gory details.

Posted by: rmgregory | April 12, 2010 5:06 PM | Report abuse

"(Pat Buchanan recommended a recess SCOTUS appointment to Nixon, but I don't think it's otherwise been done)"

George Washington did it. It's been done twelve times, most recently by Eisenhower (William Brennan).

Posted by: thehersch | April 12, 2010 5:13 PM | Report abuse

Daniel Patrick Moynihan, US Senator from the State of New York, during the hearings to confirm Scalia as an Associate Justice of the Supreme Court, stated [transcript p. 11]:

"Judge Scalia's nomination by President Reagan marks the first time a professor of law has been nominated to the Court since Wiley Ruthledge was appointed in 1943 by Franklin D. Roosevelt. The last law professor to sit on the Court was Felix Frankfurther who President Roosevelt nominated in 1939. That is 47 years, sir, and 47 years between law professors is long enough."

Posted by: rmgregory | April 12, 2010 5:13 PM | Report abuse

Almost everyone assumes that Republicans will pick up more seats in the Senate this fall.

So don't they have an additional incentive to filibuster if they can make it harder for a liberal, excuse me, moderately conservative candidate to get through committee next year?

I don't understand what incentives they have NOT to filibuster besides giving Democrats political ammunition. And when has that ever stopped them from doing anything?

Posted by: BobFred | April 12, 2010 5:14 PM | Report abuse

Correction on recess appointments: Eisenhower made three recess appointments to the Court: Earl Warren, William Brennan, and Potter Stewart, the last being in 1958.

Posted by: thehersch | April 12, 2010 5:18 PM | Report abuse

Interesting on recess appointments: I just saw Buchanan discussing it recently and hadn't bothered to look. He thought they would be taking a big step--perhaps the others were uncontroversial at the time? Thanks for the info. I'll have to look further into it myself.

Posted by: FrBill1 | April 12, 2010 5:26 PM | Report abuse

I am glad to see this post. I generally support eliminating (or at least modifying) the filibuster for legislation, but I support keeping it in place for judicial nominees.

My own favorite Supreme Court Justices are William Brennan, Earl Warren, and William O. Douglas, but I'd be happy to accept justices much less liberal if the Republicans would stop nominating (or the Senate would stop confirming) justices as far to the right as Scalia, Thomas, Roberts, and Alito.

Generally, we are better off if major social change comes through legislation than through court ruling. Sometimes (Brown v. Board, others) that isn't possible. In those cases where injustice cannot be remedied through legislation, courts are forced to act, but these circumstances are rare.

So let's keep the filibuster for judicial nominees and let's stop nominating "activist judges" from either the right or the left.

Posted by: Red79 | April 12, 2010 5:39 PM | Report abuse

I am glad to see this post. I generally support eliminating (or at least modifying) the filibuster for legislation, but I support keeping it in place for judicial nominees.

My own favorite Supreme Court Justices are William Brennan, Earl Warren, and William O. Douglas, but I'd be happy to accept justices much less liberal if the Republicans would stop nominating (or the Senate would stop confirming) justices as far to the right as Scalia, Thomas, Roberts, and Alito.

Generally, we are better off if major social change comes through legislation than through court ruling. Sometimes (Brown v. Board, others) that isn't possible. In those cases where injustice cannot be remedied through legislation, courts are forced to act, but those circumstances are rare.

So let's keep the filibuster for judicial nominees and let's stop nominating "activist judges" from either the right or the left.

Posted by: Red79 | April 12, 2010 5:41 PM | Report abuse

FrBill1, thanks for that post. It was (almost) exactly what I came in here to say. I don't think Alito and Roberts were treated so badly, though admittedly their confirmations were more contentious than Sotomayor's. I'd argue that both Alito and Roberts were more clearly, to me at least, partisan than Sotomayor, but I suspect that's an area where we'll just end up disagreeing. I don't think arguing about who's meaner in confirmation hearings is likely to be a very interesting discussion anyway.

Suffice to say, however, that I completely agree with your assessment of why Supreme Court nominees tend to face fewer filibusters.

rmgregory, I also agree with Senator Moynihan that, though I really despise Scalia as a Justice, we should have more law professors on the Court. There's no set criterion for being qualified to be a Supreme Court Justice, and I think we do ourselves a disservice to only draw from sitting judges.

Posted by: MosBen | April 12, 2010 6:05 PM | Report abuse

@ rmgregory :

If Clarence Thomas was "the most qualified" legal scholar when Bush I made the selection, then pigs do fly south for the winter unaided.

And Bork was clearly outside the judicial mainstream. How can republican complain about appointing "ideological" judges if they supported Bork?

And neither of them were filibustered.

As long as Thomas is on the bench, there is almost no one that Obama could nominate with a law degree that would be unqualified by that standard.

He and Michael Steele make the best argument against hiring obviously unqualified people because of their race, (which BTW is NOT what affirmative action does or is intended to do).

Posted by: srw3 | April 12, 2010 6:05 PM | Report abuse

theorajones1 wrote: "If Scalia wasn't extreme enough to be filibustered, neither is his liberal equivalent."

Scalia's appointment came in 1986. There hadn't been a substantial SCOTUS appointment fight since the bipartisan filibuster of LBJ's nominee for Chief of Abe Fortis, from associate justice to Chief Justice in 1968.

Aside from Fortis being a long and close friend of LBJ, he was also well known to be a crook, as well.

In the 1968 filibuster of Fortis there were 61 Dem senators, yet all they could muster to break the filibuster was 45 bipartisan senators.

A southern Dem (I can't recall which one at the moment) led the filibuster against Fortis' advancement to Chief. And after more scandals emerged Fortis resigned from the court altogether.

To put this all into context, the Fortis fight was the last big bruhaha, until the Dems led by Ted Kennedy, launched an all out but fully false character assassination attack, against D.C. Appeals Court Judge Robert Bork's nomination to SCOTUS, in a purely politically based meltdown.

That fully false, fully partisan, Kennedy led assault on Bork, against President Ronald Reagan by proxy, was the beginning of the end of all senate collegiality, that had been very much standard practice since the end of the Civil War, regarding judicial appointments.

Perhaps with Kennedy gone, collegiality and civility could be restored, at least regarding judicial appointments.

However, with partisan firebrand flame-thowers like Chairman Leahy, and members Schumer, Franken and Durbin controlling the senate judiciary committee, I'm not going to be holding out any hope, or, my breath, for that to happen anytime soon.

Posted by: Just-Tex | April 12, 2010 6:17 PM | Report abuse

@Just-Tex: There were Republicans that voted against Bork and he was not filibustered. So it wasn't a completely partisan vote.

Republicans - 6 Chafee, R.I. Packwood, Ore. Specter, Pa. Stafford, Vt. Warner, Va. Weicker, Conn. Along with Shelby, Al (of course he was a Dem then)

And Bork was the most ideologically extreme appointment to the court since 1950.

Posted by: srw3 | April 12, 2010 7:27 PM | Report abuse

Proccess???? we dont care 'bout no stinkin' proccess. Barack can jam through anything HE wants, just like HE did with obamacare

Posted by: Rick554 | April 12, 2010 7:49 PM | Report abuse

srw3 wrote: "it wasn't a completely partisan vote."

Indeed. Thanks for jogging my memory. It's been a very long time now.

srw3 wrote: "Bork was the most ideologically extreme appointment to the court since 1950."

Bork, more like Thomas and Scalia, is an originalist.

Roughly defined, originalist' adhere to a doctrine of discovery and deference to original intent, and where none is found, deference to legislative bodies.

How could that possibly be spun into being "ideologically extreme"?

Posted by: Just-Tex | April 12, 2010 8:23 PM | Report abuse

Just-Tex,

If you believe that original intent (or the literal "original understanding" for which Bork often argued) is the singular dispositive principle guiding interpretation of the Constitution, then you would have to believe that the Dred Scott case was properly decided.

Thankfully the Court throughout its history has employed a wider array of means of moral and philopsophical application of the broader principles inherent in the Constitution and not only the extreme limitations of purely "originalist" criteria. The originalist approach as articulated by a radical like Bork is indeed extreme.

Posted by: Patrick_M | April 12, 2010 9:17 PM | Report abuse

A few things: The most controversial recess appointment to the Supreme Court was undoubtedly Washington's appointment of John Rutledge as Chief Justice; he was the only recess appointee not to be confirmed later. As to law professors and sitting judges, Scalia had been a law professor, but had served on the DC circuit court for four years when Reagan appointed him to the Supreme Court. And as to "originalism", it's worse than a joke. Let's see how Bush v. Gore squares with the original intent of the framers, shall we? Or how the court's discovery of an individual right to own guns independent of militia service in DC v. Heller squares with the original intent of the framers of the second amendment. Or how the dissenters in Hamdan, led by Scalia, followed the understanding of the framers regarding habeas corpus. It's all preposterous twaddle.

Posted by: thehersch | April 12, 2010 10:13 PM | Report abuse

Patrick_M wrote: "you would have to believe that the Dred Scott case was properly decided."

Why would any thinking person "have to believe" something so absurd?

There isn't space here to dissect every aspect of the case, but I will say that Dred Scott v. Sandford was, and still is, an example of how raw judicial activism can go astray.

With that so, more than any other case or issue of the time, Dred Scott v. Sandford solidified the slavery issue by over ruling initiatives working within the States by the legislatures, and by the People themselves.

The States and the People observed that the decision left them nowhere left to turn outside of a Constitutional Amendment. Which set the beginnings of the Civil War fully into motion.

However, in their dissents, among other valid points, Justice Curtis and Justice McLean first argued that the slavery issue was unsettled because nothing in the Constitution blocked Negroes from citizenship. And, that the court had acknowledged early on that it lacked jurisdiction under Article Three, Section 2 of the Constitution. With that they argued, the court should not issue any ruling for or against Scott, and defer the issue back to the appropriate legislative bodies.

Although there are still other significant flaws within the Dred Scott v. Sandford ruling to discuss, for our purposes here, that should be sufficient to demonstrate your reasoning is poorly constructed, and that your comment here to me is simply invalid and absolutely absurd.

Posted by: Just-Tex | April 13, 2010 1:55 AM | Report abuse

Just-Tex,

"However, in their dissents, among other valid points, Justice Curtis and Justice McLean first argued that the slavery issue was unsettled because nothing in the Constitution blocked Negroes from citizenship."

The argument (contained in the dissent) that "nothing in the Constitution blocked Negroes" from citizenship is ~in itself~ an argument against Bork-style original intent. Would anyone argue that the "original intent" of the framers was to permit slavery and full citzenship at the same time?

I am sorry, but Dred Scott is the natural result of trying to decide every case by looking into the specifics of 18th century American social organization, rather than the of core meaning of Constitutional values with evolution of societal progress.

Originalists demand explicit and direct authorization in the word-by-word reading of the Constitution in order to find grounds to declare law unconstitutional. Read Tanney (the ultimate originalist) on the Scott decision.

Bork was truly a radical and a provocoteur on this subject. His nomination was very stupid, and sadly it forever changed the political concerns that surround SCOTUS nominations.

Posted by: Patrick_M | April 13, 2010 2:20 AM | Report abuse

Scalia, Thomas, Bork, etc. are conservatives in the modern understanding of that term. "Originalist" is a nice sounding term and concept employed to make it seem like a position unrelated to modern politics.

Posted by: MosBen | April 13, 2010 7:53 AM | Report abuse

There is no other objective position other than Originalist.

Posted by: WrongfulDeath | April 13, 2010 8:53 AM | Report abuse

The comments to this entry are closed.

 
 
RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company