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Wednesday, October 19, 2016

End of the Filibuster?

In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.

If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.

This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?

I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?

A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.

By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works. 

Posted by Lisa Manheim on October 19, 2016 at 12:55 AM in Current Affairs, Judicial Process, Law and Politics | Permalink


Well, the idea is that if a filibuster must be done in the open, there will be political repercussions and a political price to pay, certainly for making it routine (as opposed to the extraordinary weapon it used to be). It would change the current model in which the Senate is operating under a de facto supermajority requirement but no one notices.

Posted by: Howard Wasserman | Oct 23, 2016 8:18:53 PM

I've heard the 'bring back the talking filibuster' before, but I don't think it is a great solution to anything.

Sure, if there's one Senator that wants to filibuster he won't last more than 20 hours or so and that's that. But if there was only one Senator that wanted to filibuster than cloture works fine.

What about when there are forty-five Senators that want to filibuster? Now they can keep up a talking filibuster indefinitely, that's just a little over 1 hour of talking every other day. Meanwhile not only does the presiding officer and the senate staff, plus at least one member of the opposition party, need to stay in the chamber, but most of the opposition party needs to stay within a few minutes of the capitol and be on call. Otherwise the filibustering party can just call the question and vote it down with their majority of those present and voting.

So a talking filibuster would not only prevent any business from getting done on the floor of the Senate, but it would keep all hundred senators from getting much else done.

All for what? Because people liked Mr. Smith Goes to Washington?

The filibuster is a recipe for inaction in a body that is already too sluggish. We need a vigorous legislature to counter-balance an ever more powerful executive, not one that is perpetually engaged in useless showmanship.

Posted by: Brad | Oct 20, 2016 12:02:41 PM

Howard Wasserman's suggestion that we bring back the talking filibuster is an excellent idea.

Posted by: Douglas Levene | Oct 20, 2016 3:04:47 AM

A different question is whether it would be possible to bring back the talking filibuster, so that there is a cost to filibustering of being responsible for suspension of all other Senate business. If it must happen in the open, the incentives might change.

Posted by: Howard Wasserman | Oct 19, 2016 2:26:23 PM

Douglas, I'm not sure the situation that Sen. McConnell has faced is analogous to what the Democrats may face next year. Since Sen. McConnell has been the Majority Leader, Democrats haven't needed a filibuster to thwart legislation or to prevent unfavorable appointments, given that they've also had the presidential veto and the nomination power. So there hasn't been the same set of incentives to get rid of the filibuster. (Counter to my point is the fact that the Democrats nevertheless have engaged in some filibustering -- see http://www.politico.com/story/2016/06/sen-chris-murphy-starts-talking-filibuster-over-gun-control-224369 -- so you are correct to suggest that there is at least some overlap.)

Jesse, fair point about framing.

Posted by: Lisa Manheim | Oct 19, 2016 12:45:58 PM

I understand why you cast this as a story of the Democrats (likely) breaking with tradition to permit the confirmation of a justice without any participation from the opposing party. That will be technically true if the election unfolds as it looks like it will. But I'd suggest an equally valid way of looking at this is that Merrick Garland is in fact a classic bipartisan choice, and that the real break is the Republicans' refusal to consider him -- forever, it now seems, according to McCain and Lee. The "one-sided" confirmation a demonstrably centrist, late-middle-aged (only 4 years younger than Thomas!) white male chief judge of the top circuit court in the country, who has been lavishly praised and described as the perfect bipartisan pick by Republicans pre-Scalia's death ... may be unique, but it should be lain at the feet of Senate Republicans, not Democrats.

Posted by: Jesse W | Oct 19, 2016 10:57:23 AM

Justice Thomas is only 68 and has been on the bench for 25 years, so choosing younger people already is being done. Plus, the minimum bipartisanship in recent Supreme Court votes is notable, leading to Garland. The die looks cast.

I wonder how much the filibuster rule actually affected the process for at least Supreme Court justices in the past. I agree with brad too, especially since there already are ways for a minority to delay things and control (at least now) of at least the Senate will be decided upon final votes that probably will not act totally partisan. Their electorate would not like it for one thing.

Posted by: Joe | Oct 19, 2016 10:50:49 AM

There are several things in the Constitution that explicitly require a supermajority from the Senate. Confirming nominees and passing ordinary legislation are not of them.

The filibuster is a recipe for inaction in a body that is already too sluggish.

Posted by: brad | Oct 19, 2016 8:46:23 AM

I agree with Lisa's prediction, which is why I thought the GOP should have ended the filibuster a few years ago. They didn't, because Sen. McConnell thought that if he forwent the tactical advantage of ending the filibuster in favor of the Senate's long term best interests, the Democrats would reciprocate. I guess he was wrong.

Posted by: Douglas Levene | Oct 19, 2016 2:58:58 AM

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