Opinion

Reihan Salam

What the filibuster’s demise means for the Supreme Court

Reihan Salam
Nov 22, 2013 21:53 UTC

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.

Waiting on the world to change

Reihan Salam
Apr 1, 2013 17:00 UTC

As the Supreme Court weighed arguments over California’s Proposition 8 and the federal Defense of Marriage Act last week, the cultural and political momentum in favor of same-sex civil marriage was extraordinary. One after another, prominent Democrats who had been reluctant to endorse same-sex civil marriage switched their positions, recognizing that they were in grave danger of being “on the wrong side of history” (a phrase we’re hearing a lot lately). Some of the reversals have been surprising only because they’ve come so late, as in the case of Hillary Clinton. Others, like Senators Jon Tester and Kay Hagan, were surprising because they represent states, Montana and North Carolina, where same-sex unions aren’t recognized.

But this rush among politicians, including a small but growing number of Republicans, to back same-sex civil marriage won’t settle the issue. Assuming the Supreme Court doesn’t decide to invalidate the laws of the 37 states that limit civil marriage to opposite-sex couples, 31 of which have constitutional amendments to that effect, this debate will go on for many years. And we’re already starting to see the contours of what comes next ‑ a battle between those fighting to return cultural values to what they were before the sexual revolution, and those convinced that there is no turning back.

A number of conservatives, myself included, have argued that the right needs to shift from opposing same-sex civil marriage to focusing on the broader erosion of marriage, particularly among working- and middle-class Americans. Over the past half-century the share of 18- to 29-year-olds who are married has fallen from 60 percent to 20 percent. This wouldn’t be much of a problem if young adults were delaying child-rearing until after marriage, as is true among college-educated Americans. But the out-of-wedlock birthrate now stands at 41 percent. By changing the subject from fighting same-sex civil marriage to strengthening marriage for all families, conservatives who believe that stable marriages are crucial for child-rearing and economic advancement can form alliances across the political and cultural spectrum. Although this argument has gained at least some currency among younger conservatives, who’ve been raised in a culture that takes gay equality as a given, it is far from becoming the conservative conventional wisdom. If anything, opponents of same-sex civil marriage see this “call for a truce” as a reflection of a basic misunderstanding about the real meaning of marriage.

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