Opinion

Reihan Salam

What the filibuster’s demise means for the Supreme Court

By Reihan Salam
November 22, 2013

Now that Senate Majority Leader Harry Reid has ended the filibuster for district and appeals court nominees and executive branch appointments, it’s only a matter of time before the filibuster goes away for Supreme Court nominations and legislation as well. Reid’s decision has been a long time coming: One of his predecessors, Republican Bill Frist, came very close to ending the filibuster in 2005.

Even so, at least some observers are troubled by what they see as Reid’s recklessness. Former Senator Olympia Snowe and former Agriculture Secretary Dan Glickman, co-chairs of the Bipartisan Policy Center’s Commission on Political Reform, of which I’m a member, released a statement criticizing the filibuster decision on the grounds that “any alterations of rules or practices should be done judiciously, after careful consideration and with a balanced approach that incorporates views from all sides.”

The problem, however, is that the filibuster has not been used judiciously, by either Democrats or Republicans. Over the past forty years, it has been transformed from a tool designed to encourage deliberation to something else entirely. Josh Chafetz, a professor at Cornell Law School, argues that the filibuster has become an implicit supermajority requirement — one that violates the Constitution. According to Chafetz, the rules governing the legislative process and the appointments process are based on the premise that a determined legislative majority will eventually prevail over the minority, not that the minority has the right to exercise an effective veto. One could argue that there is a meaningful difference between using the filibuster to block judicial nominees and executive branch appointments, and using it to stymie legislation, but it’s not at all clear that such a distinction would hold up in a constitutional challenge.

It’s worth considering how different the last few years might have been in the absence of the filibuster. President Obama’s Affordable Care Act might have included a public option, or opened Medicare to Americans under the age of 65. A number of left-of-center legal scholars, including Goodwin Liu, who currently serves on the California Supreme Court, might now sit on the federal bench. During the first years of the Obama presidency, moderate Democrats in the Senate would have been far less powerful, and liberal Democrats would have been far more so. It is also true, however, that conservative Senate Republicans would have been far more powerful when they were in the majority for most of the Bush years, and a conservative judicial nominee like Miguel Estrada might now be serving on the Supreme Court.

Going forward, Reid’s decision will leave a deep imprint on American politics. Without the filibuster, a future Republican majority in the Senate will have a much easier time repealing the Affordable Care Act. Conservative critics of the ACA, like Keith Hennessey, have called for using the budget reconciliation process to repeal many of its central elements. Yet other elements of the law, including the state exchanges and the new coverage mandates, would be harder to undo, as they might have remained subject to the filibuster. Though ending the filibuster lowers the bar for liberal lawmakers to increase social expenditures, it also lowers the bar for conservative lawmakers to shrink them.

But the most visible consequence of the filibuster’s demise, at least in the near term, is that it will transform the politics of Supreme Court appointments. Ever since Robert Bork’s failed nomination to the Supreme Court, presidents have tended to appoint legal scholars who have kept their ideological views close to the vest, for fear of sparking opposition from hostile lawmakers. If a simple majority is enough, activists on the left and right will expect their respective parties to nominate more ideologically forthright jurists.

This shift might prove particularly consequential for future Republican presidential candidates. For decades, pro-life conservatives have pressed for judicial nominees committed to repealing Roe v. Wade. They’ve been frustrated by a series of Republican Supreme Court appointees who’ve been unwilling to take that step, including some, like the former Justices David Souter and Sandra Day O’Connor, who sided with their liberal colleagues on a wide range of social issues. During the next race for the GOP presidential nomination, candidates will be expected to demonstrate their anti-Roe bona fides by committing themselves to nominate anti-Roe jurists. But in a post-filibuster world, this commitment might mean more than it has in the past, as future Republican presidents won’t have the filibuster as an excuse for nominating Supreme Court justices who don’t have clear convictions. Of course, there is no guarantee that a future Republican president will have a Republican Senate majority, and a divided government scenario raises issues all its own.

If our goal is to lower the temperature of judicial nomination battlers, with or without the filibuster, we might consider embracing term limits for Supreme Court justices, an idea that’s been advanced by Steven Calabresi and James Lindgren, both of Northwestern University. Specifically, Calabresi and Lindgren call for a constitutional amendment that would establish a nonrenewable eighteen-year, staggered term limit for each justice, with the expectation that there would be a vacancy every two years. This term would be long enough to guarantee political independence, but also short enough that political actors needn’t fear that every nomination represents a last-ditch battle for America’s constitutional future. Constitutional amendments are always a heavy lift, but this one has the potential to unite activists on the left and the right.

PHOTO:  The U.S. Supreme Court is seen in Washington, September 29, 2009. REUTERS/Jim Young 

Comments
2 comments so far | RSS Comments RSS

BOTH parties should “be careful what you wish for” in this mess. Democrats have the majority in the Senate now, but that could change and then they would be subject to Republicans being able to push through their nominees. For every action there is a reaction -

Posted by AZreb | Report as abusive
 

As to Bork, he wasn’t the subject of a Filibuster. He failed when he got an up and down vote, 58 against and 42 for. That simple fact seems to have been lost over the mists of time. Six Republicans voted against him. Using Bork as a touchstone regarding the Filibuster is simply fallacious.

Every time (really, check it out) there has been a change to the Filibuster rule, and this is the third one, there are those who complain about the fact that it wasn’t done “judiciously, after careful consideration and with a balanced approach that incorporates views from all sides.” Oh Phooey! It gets changed because of exigent emergent matters that do not lend themselves to such a consideration.

In this case – it is possible to say it was done with careful consideration and consultation! There had be a “balanced approach that incorporates views from all sides” that had avoided the removal of the Filibuster at the very beginning of this Congress. And then the Republican Party broke their part of the deal. Breaking the deal in and of itself led to the Decision. And so the “they ought to know better” nonsense is just that.

It remains to be seen if we are worse off or better. My bet is we are far better.

As to the threat of defunding and killing the ACA… Republicans have to control both house and the Executive to really do that, AND if they have nothing better to replace it with they will court electoral suicide at their next outing.

Besides, we still have the Department of Education. Remember what Reagan was going to do to that?

Threats are just threats. They don’t approach governing.

Posted by MikeLieberman | Report as abusive
 

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