How the West Was Won: The Past and Present of the Filibuster

Before it referred to a legislative tactic, the word "filibuster" signified individuals who settled in foreign states with the intent of eventually overthrowing the existing government. For example, President Bush’s home state of Texas was created by filibusterers who defeated the Mexican army in 1836 in the Texas revolution.

So, historically, the word "filibuster" suggests a rogue minority trying to seize power, which is just the way Republicans paint Democrats’ attempts to stop some of President Bush’s judicial nominations. But Democrats argue that they are not legislative fugitives at all, but rather practicing constitutionally-sanctioned minority rights.

So, at the heart of the debate over judicial filibusters is a dispute over the intentions of the U.S. Constitution. How did the Framers envision the advice and consent process? And did they see the filibuster as a way to prevent the tyranny of the majority?

The war over the judiciary - the nuclear or constitutional option

President Bush’s judicial nominations will be an important part of his legacy, if not the most significant action of his second term. He will have the opportunity to nominate at least one new Supreme Court Justice, who will sit on the bench for life, affecting Americans for generations.

For this reason, Republicans want to ensure that President Bush’s nominees don’t run into a procedural blockade called a judicial filibuster, a tool that the minority uses to stop controversial nominees. Overriding a filibuster demands a super-majority of 60 votes.

The Constitution dictates that the Senate give its advice and consent on all federal court appointments. A filibuster stops the consent process, effectively blocking the nominee.

Republicans want to change Senate rules in order to keep Democrats from filibustering nominees, a strategy that Democrats are calling "the nuclear option," and that Republicans refer to as "the constitutional option."

But just how constitutional is the "constitutional" option?

Republicans want to get rid of the judicial filibuster and have the power to pass nominees with just 51 votes and there are 55 Republicans. They argue that judicial filibusters are unconstitutional because the Advice and Consent Clause says that appointees must be confirmed or rejected by a simple majority vote.

But the Constitution does not dictate how the Senate advises or consents to a nominee. The Rules of Proceedings Clause allows the Senate itself to determine how it wants to consent. The Senate could decide that it wants a unanimous vote, or, on the other hand, a small committee to confirm nominations. The Constitution merely requires that the Senate somehow approve the President’s nominees. And under the current rules, not voting on a nominee - which is what happens with a filibuster - means simply not giving consent.

But the Rules of Proceedings Clause also makes it constitutional for Republicans to change the consent rules to a simple majority vote. Doing so would ensure majority power over the judicial nominations process.

Tyranny of the majority?

Republicans argue that it’s fair to change the rules to a simple majority vote since it is consistent with the principle of majority rules.

However, the Framers of the constitution went to great lengths to prevent the tyranny of the majority - when the majority decides all measures and silences the minority’s voice.

The Framers did not want a simple system of majority rule, but rather a government structure that afforded the minority some representation and rights. In The Federalist Papers, James Madison wrote that "measures are too often decided, not according to the rules of justices and the rights of the minor party, but by the superior force of an interested and overbearing majority."

What about the "advice" part?

Democrats complain that Bush is ignoring the "advice" portion of the Advice and Consent Clause. They say that he refuses to communicate with senators who oppose his nominees and that he appoints controversial nominees when the Senate is in recess. This lack of communication between the Bush administration and the minority encourages judicial filibusters.

Further, Democrats say that Bush should nominate only judges who are acceptable to a variety of Americans. If a nominee can’t secure even 60 votes in the Senate, Democrats say, she or he is too immoderate for the federal bench.

A Parliamentary Crisis

If Republicans change Senate rules to approve judicial nominees, Democrats say that they will retaliate by refusing unanimous consent agreements, which help legislation to move quickly through the Senate.

This reprisal would slow the Senate to a near-halt, causing senators from both parties to spend days on the floor voting on routine housekeeping matters. Democrats could use amendments to slow bills as well - Senate precedent allows any senator to break an amendment into smaller pieces that are each considered separately.

The potential for a near-shutdown in the Senate is causing critics to call the battle over the judiciary "a parliamentary crisis." Both sides are resisting compromise and threatening extreme procedural tactics to win.

Attempt at Compromise

However, some Senators on both sides of the aisle are calling for compromise. Ben Nelson (D- Nebraska) and John McCain (R- Arizona) are trying to negotiate a deal between the parties and avoid a nuclear meltdown in the Senate.

The compromise would allow for simple-majority votes for most of Bush’s blocked nominees in exchange for the promise that six Republicans would vote against the nuclear option. McCain, Arlen Specter of Pennsylvania, and Olympia Snowe of Maine would likely be in that group.

The deal would allow Democrats to reserve the right to filibuster judicial nominees under "extraordinary circumstances." But Republicans worry that Democrats would loosely interpret the word "extraordinary" in the future. Also holding up negotiations are arguments over which of the nominees would win up-or-down votes, and which would be open to filibuster.

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Posted on: 5/20/2005