ConfirmThem

By AndrewHyman Posted in Fillibuster — Comments () / Email this page » / Leave a comment »

Perpetual nomination filibusters are a new and unprecedented tactic in the United States. Proponents of that new tactic are trying to confuse it with the old tradition of legislative filibusters which have been around for quite awhile, in both Washington D.C. and Hollywood. Smart people should understand the differences between these two types of filibusters, and those differences go way beyond the fact that one tactic is new and the other old.

First, legislative filibusters allow a minority to defend the status quo, by preventing changes to the law. In contrast, filibustering judicial nominations allows a minority to demand judges who will change the law by legislating from the bench (or by upholding previous legislation from the bench); thus, a supermajority of 60 senators becomes necessary in order to defend the legitimate status quo.

Second, legislative filibusters are inclusive, in the sense that they bring more people and viewpoints into the system. In contrast, judicial nomination filibusters are intended to exclude people, by narrowing the pool of candidates who will ever get on the bench. No more Scalias. No more Thomases.

Third, legislative filibusters only involve the legislative branch. In contrast, nomination filibusters disrupt the way the branches interact and balance each other, while at the same time severely limiting the flexibility and influence of the executive branch. Vice Presidents Ford and Rockefeller were both confirmed by the Senate, but next time around 42 Senators representing less than 12% of the population could demand whoever they want.

Fourth, legislative filibusters arguably conform with the intentions and expectations of the framers of the Constitution. In contrast, perpetual nomination filibusters do not. For example, here's a quote from Alexander Hamilton: "[I]t could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy." Hamilton only trusted "the majority of the senate" to confirm or reject nominations.

Fifth, legislative filibusters do not erode the rule of law. In contrast, filibusters of judicial nominations dramatically erode the rule of law, by ensuring a philosophically homogenous judiciary now and in the future. This means that when judges write their opinions, they will not have to convince their colleagues or their successors, because their colleagues and successors will all be cut from the same cloth. In other words, judicial precedents will be able to survive without having to pass muster with a broad range of viewpoints, and so those surviving precedents will not have to be firmly based upon the objective meaning of the law.

One could go on and on. Confusing these two kinds of filibusters is just as mindless as confusing the confirmation rates for district court nominees with confirmation rates for appellate court nominees, or confusing temporary filibusters with permanent filibusters, or confusing a nominee's personal opinions (or clientele) with how the nominee has acted in an official capacity, or confusing the rights of political minorities with the rights of other minorities. If the American people are stupid enough to be so easily confused, then perhaps we deserve what we get.

I might add that another (sixth) key difference between nomination and legislative filibusters is that the latter are not affected by Senate Rule 31, because Rule 31 only deals with nominations. Senate Rule 31 implies that there must be a time limit for nomination filibusters. It says, "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration..." Obviously, then, the full Senate can only confirm or reject a nomination by a majority vote; in contrast, a perpetual nomination filibuster plainly amounts to "rejection" without a majority vote. Senator Hatch recently spoke about Rule 31 on the floor of the Senate. Also, the Federalist Society and the Heritage Foundation are co-sponsoring a conference tomorrow that will address Rule 31.