Senate Abolishes Filibuster, With Potentially Profound Implications for the Rule of Law

by Hans Bader on November 22, 2013

in Legal, Politics as Usual, Zeitgeist

Yesterday, the Senate voted 52-48 to effectively abolish the filibuster for nominations to federal offices, such as federal appeals courts and trial courts, and cabinet departments. It used a tactic Senate Democrats once insisted violated Senate rules. As Reason Magazine notes, “The Senate struck down a rule requiring 60 votes to cut off a filibuster of an appeals court judicial nominations, voting 52-48 along party lines to disregard it, effectively overturning more than 200 years of Senate precedent, not only on the judicial filibuster, as the Washington Post notes, but by moving to change the chamber’s rules without the traditional two-thirds majority in support, something previously done only to alter relatively minor rules. It’s rules all the way down.”

(University of Chicago law professor Will Baude says that, technically, the Senate voted to ignore the current filibuster rule,” rather than “change it,” since it was procedurally barred from changing the rule. He says it did so because a “vote to actually change the rule would also have been in contradiction to Senate Rule V, which requires ‘one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof.’” That, he says, “may be relevant to the constitutionality of what the majority did,” although it is “extremely unlikely” that the courts would accept jurisdiction over such a politically thorny constitutional challenge.)

Senate Majority Leader Harry Reid, D-Nev., says the filibuster remains intact for legislation and Supreme Court nominations. But if the Senate can abolish certain filibusters by a simple majority vote, then it can abolish all of them and presumably will do so whenever it becomes ideologically expedient.

After all, when he extracted a deal from the GOP limiting the filibuster’s use for executive nominations earlier this year, Reid claimed he had no intent to go further to change the rules regarding judicial filibusters. He assured the public: “We’re not talking about changing the filibuster rules that relates to nominations for judges” (Press Briefing, 7/11/13) and “We’re not touching judges. That’s what they were talking about. This is not judges.” (NBC’s “Meet The Press,” 7/14/13). Needless to say, these assurances proved to be about as accurate as the President Obama’s since-broken promise that “if you like your health plan, you can keep it.”

This rule change may have profound implications for the courts, resulting in future court packing. Abolishing the filibuster for legislation would eliminate any possible check on court packing through statutory expansion of the number of judges in a future Congress dominated by the same party. The Constitution does not define the number of judges or courts, and leaves that to Congress by statute.

Eventually, America could end up with twice as many appeals court judges or more, as each party increases the number and stacks the courts with its own people when it gains full control.

On contested points, the law could end up meaning nothing more than who holds the presidency and the Congress today, and no one will respect it as anything more than that. If that happens, it could increase extremism, unrest and disrespect for the rule of law.

The stated justification behind the virtual abolition of the filibuster is the principle of majority rule and the idea the minority should not be able to block what a majority of the public wants. Never mind that the whole purpose of having two Houses of Congress and a presidential veto is partly to prevent bad ideas backed by a majority — especially a temporary majority — from becoming law without a broad consensus. Reason Magazine, most of whose staff voted for Obama in 2008 but not in 2012, argues that “The ability of a minority to thwart the agenda and will of the party in power is a feature, not a bug, of the constitutional order.”

But this stated rationale is hard to square with the fact the Senate Majority Leader is perfectly happy to ignore the principle of majority rule whenever it is convenient, such as his unprecedented use of the “filling the tree” tactic for preventing popular amendments to “must-pass” legislation, or legislation whose very name makes voting against the legislation politically impossible, regardless of the legislation’s flaws, such as the Violence Against Women Act, which contained unnecessary, little-known provisions that violated free speech and other constitutional provisions. As Wikipedia notes, “filling the tree is the process in which a piece of legislation in the Senate has all of its possible opportunities for amendments filled by the majority leader.”

Reid has used this abusive tactic far more than any of his predecessors. Reid uses this tactic to fill up all potential amendment slots with trivial or minor amendments supported by opponents of any meaningful amendments to a bill, leaving no opportunity to consider substantive or meaningful amendments. The practical effect is to allow red-state Democrats in the Senate who pretended to be moderates to get elected, to avoid voting against moderate or conservative amendments that would be overwhelmingly popular with their constituents. Occasionally, Wikipedia notes, “Senators will reject a bill if they feel they have not been given an adequate opportunity to offer amendments. For example, Sen. Susan Collins of Maine voted against the 2010 Defense Authorization Bill although she largely supported the substance of the bill, citing the filling of the amendment tree by Senate Majority Leader Harry Reid of Nevada.” But such rejections are rare.

Another possible ramification of the filibuster being abolished is that independent agencies may get much more partisan and ideologically biased, creating more ideological battles and controversies. Transforming the Senate into a simple majoritarian body for the purpose of nominees eliminates all leverage for the minority party to insist on its own nominees to independent agencies. The greatest leverage the minority has to secure confirmation of its nominees to bipartisan boards is to insist they be paired with the nominees of the majority. That leverage is completely eliminated if the majority can confirm nominees to bipartisan boards with a simple majority vote. Furthermore, the ability of the minority to extend debate on nominees acts as the backstop on who the president chooses to fill these slots. Thus, if the “nuclear option” occurs, the eventual result is likely to be an even more ideologically lopsided FTC, FCC, NRC, NLRB, etc.

An interesting analysis of the vote is provided by attorney Roger Pilon of the Cato Institute, a libertarian think tank not affiliated with either the GOP or the Democrats, and which has been deeply critical of the policies of both President George W. Bush and President Obama (Reputedly, more Cato Institute staff voted for John Kerry than George W. Bush in 2004, although Romney likely outpolled Obama among libertarians in 2012, according to Reason Magazine). As Pilon notes, filibustering of judicial nominees is not new to this administration. The Bush administration initially sent “11 appellate court nominees” to “the Senate Judiciary Committee, two of them Democrats — a gesture from Bush. Those two were immediately confirmed. The rest would not even get hearings. Instead, Democrats,” who controlled the Senate until 2003 ”began calling for ‘litmus tests’ — explicit demands that nominees state their views on everything from abortion to affirmative action to Congress’s unquestioned power to regulate anything and everything.” Then, after “the 2002 midterm elections, which switched control of the Senate back to the Republicans,” Senate Democrats began the unprecedented filibustering of appellate-court nominations. The most egregious case was that of Miguel Estrada . . . First nominated by President Bush in May 2001, Estrada finally withdrew his name from further consideration some 27 months later, after seven failed cloture votes in the next, 108th Congress.”

Pilon also argues that although both parties may be guilty of hypocrisy about filibusters in general,

that’s not what’s at issue here. In the D.C. Circuit matter, which has driven Sen. Reid to the nuclear option, Republicans are not raising ideological objections to Obama’s nominees — as Democrats did when they filibustered Bush’s picks. Their objection, rather, is that these judges are not needed, because the workload of the court is so light. In fact, speaking of hypocrisy, Democrats, in the minority in the 109th Congress, used that very rationale to urge Judiciary Committee chairman Arlen Specter in a July 2006 letter not to confirm any additional Bush nominees to the D.C. Circuit — and none were confirmed after that letter from Sens. Leahy, Feinstein, Schumer, and Durbin was sent, all of whom are still on the committee. Yet now, when the court’s workload is even lighter, Democrats cry foul when Republicans point that out.

In fact, look at the numbers from the Administrative Office of the U.S. Courts. In 2006, written decisions per active judge had declined by 17 percent since 1997. Since 2006 they have declined another 27 percent. In 2006, the total number of appeals filed had declined by 10 percent since 1997. Since 2006 they have declined another 18 percent. The Administrative Office ranks the 12 circuits using various caseload benchmarks: 2013 is the 17th straight year that the office has ranked the D.C. Circuit last on both appeals being filed and appeals being terminated. There simply is no need for more judges on the D.C. Circuit when those there now do not have enough to do — unless, of course, the aim is to have a bench more sympathetic to rule by presidential diktat, which may be precisely why Sen. Reid wants to go nuclear.

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