Is the Filibuster Nuclear or Constitutional?

Is the Filibuster Nuclear or Constitutional?

by Mariah Wojdacz, December 2009

Jimmy Stewart dramatized it in Mr. Smith Goes to Washington Southern Democrats used it to block civil rights legislation in the 1960s. It is the filibuster, the Senate's "big gun," a parliamentary procedure used to keep legislation from coming to a vote. But can the filibuster block a president's judicial nominees?

That question is the focus of a hot debate right now in Washington.

The Constitution grants the Senate the power to "advise and consent" (in other words, vote) on executive branch nominees. A nominee needs only 51 votes - a simple majority - in order to be approved. But under current Senate rules, it takes 60 votes to end a filibuster.

Republicans contend that such use of the filibuster is unprecedented and unconstitutional. Republicans argue that, by filibustering judicial nominees, Democrats have effectively changed the number of votes needed to confirm a judge from 51 to 60. The Senate rules themselves, however, can be changed by a simple majority vote. Thus, with 51 votes, Republicans can re-write Senate rules to disallow filibustering of judicial nominees.

Democrats call this "the nuclear option." They say the Republicans have no right to change the rules by a simple majority vote, because it would take 60 votes to end a filibuster mounted against any resolution to change the Senate rules.

Is anyone's head spinning yet?

Last year, the 108th Congress used the filibuster to block 10 of President Bush's appellate court nominees. When the 109th Congress convened in January, Bush re-nominated seven of the ten - the other three declined re-nomination. Again, Democrats threatened to invoke the filibuster. Republicans, with their new 55-seat majority, rallied for a fight.

In a March 15 letter to Senate Majority Leader Bill Frist (R-Tenn), Senator Harry Reid (D-Nev) said if Republicans attempt to change the Senate filibuster rules, the Democrats will shut down all Senate business, except for "legislation supporting our troops and other legislation needed to ensure the ongoing operations of the federal government."

The filibuster has been and will continue to be a thorn in the side of the majority party, especially since those invoking it are no longer required to hold the floor.

Republican Senator Orrin Hatch of Utah responded, "Democrats are threatening to hold hostage the American people's legislation to maintain their ability to rig the judicial confirmation process."

This stand-off may soon turn into a full-scale political war, as two of the seven nominees - Judges Janice Rogers Brown and Pricilla Owen - made it out of committee the week of April 18. The next step for these two is an up or down vote on the Senate floor - unless, of course, the Democrats filibuster.

If they do, Republicans are expected to "go nuclear," and change the Senate rules.

But suddenly, it seems the Democrats are starting to back away from their threats to shut the Senate down. On Monday, April 25, Senators Richard Dunbar (D-Ill) and Charles Schumer (D-NY) said their party does not intend to shut down the Senate if Republicans attempt to chance the rules. Delaware Senator Joseph Biden (D) said the Democrats were willing to compromise, and all but the two "most extreme" nominees come to a vote.

Republicans flatly rejected that offer, saying such a compromise would not address the fundamental issue of guaranteeing all nominees get an up or down vote.

Until last Monday, Democratic leaders maintained that all seven nominees were unacceptable, not because they were unqualified, but because of their conservative stands on women's issues, civil rights, and the environment. Generally, all the nominees have received high ratings from their home-state legal associations.

Constitutionally speaking, the Senate's role is to consider whether or not a judicial nominee is qualified to sit on the bench, and not to predict how that nominee might rule from the bench in the future.

There is a good reason for this distinction; that is, past presidents and senators alike have been notoriously bad prophets. When the first President Bush nominated Supreme Court Justice David Souter, Ted Kennedy predicted he would solidify a "5-4 anti-civil rights, anti-privacy majority." Justice Souter has since been a reliable liberal vote on the Court. Similarly, five of the seven justices who voted to legalize abortion were nominated by Republican Presidents Eisenhower and Nixon.

What does the American public think? That depends on how you ask the question. A recent Washington Post/ABC News poll asked voters, "Would you support or oppose changing Senate rules to make it easier for Republicans to confirm President Bush's judicial nominees?" The result? 66% opposed, 26% support.

But the results of other polls tell a very different story. According to a scientific national poll by the Judicial Confirmation Network, 82% of voters agree that "if a nominee for any federal judgeship is well qualified, he or she deserves an up or down vote on the floor of the Senate." The poll also asked voters if "senators have a constitutional duty to give an up or down vote to a nominee for the U.S. Supreme Court." 78% of voters said they did, while only 12% said they did not.

Even more recent are the results of the RNC poll, which asked voters to agree or disagree with the statement, "Even if they disagree with a judge, Senate Democrats should at least allow the President's nominations to be voted on." 81% agreed, while only 18% disagreed. Could Democrats be backing down because they fear public opinion is turning against them?

The filibuster has been and will continue to be a thorn in the side of the majority party, especially since those invoking it are no longer required to hold the floor. The image of senators reading from the phone book, or the eloquent Mr. Smith, has long been a thing of the past. Republicans used the filibuster to block President Clinton's agenda in the 1990s. In 1996, nine Democratic senators still in office today declared that all filibustering unconstitutionally infringes on majority rule. In 1999, Senator Diane Feinstein (D-Ca) said, "Our institutional integrity requires an up-or-down vote." Now, six years later, Republicans would finally agree.