Senate Republicans Ponder First Strike on Filibuster Rule

William & Mary Law School professor Michael J. Gerhardt spoke at the invitation of the American Constitution Society.

Senate Republicans believe they are clearing obstacles from the path of future Supreme Court candidates by ending the Senate's traditional filibuster rule, said William & Mary Law School professor Michael J. Gerhardt April 19 in a talk that discussed the history and use of the filibuster. The author of "The Federal Appointments Process: A Constitutional and Historical Analysis," Gerhardt has testified before the Senate Rules and Judiciary Committees on the constitutionality of the filibuster. He spoke at the invitation of the American Constitution Society.

"Senate Democrats have one procedural device left to them-the filibuster," he said, adding that they have recently used it to block 10 Bush appointees to U.S. Courts of Appeal while allowing 206 other candidates for federal judgeships to go through.

A likely Senate vote to end the filibuster will be "a historic event," Gerhardt said, and threatens to "explode the Senate" and provoke new extremes of partisan tactical maneuvering if it happens.

The reasoning behind the challenge to the filibuster's constitutionality rests on the concept of entrenchment: the idea that all legislatures are equally powerful and a current legislature cannot bind the prerogatives of a future one. The Supreme Court has also found that legislative entrenchment is unconstitutional. Thus Senate Standing Rule XXII, "the cloture rule," which allows unlimited debate on an issue until a cloture motion passes, is also likely unconstitutional because it requires a supermajority to pass. The Constitution says that action in Congress shall be by simple majority except in seven specific cases. In 1975 the rule was altered, lowering the percentage of the vote necessary to end a filibuster from two-thirds of senators (67) to three fifths (60). But in numerous other earlier attempts at alteration, the Senate expressly rejected the idea that a simple majority was enough to change the rule. In fact, the 1975 change is a precedent against the change now being advanced, Gerhardt said.

[For a detailed exposition of the reasoning, Gerhardt cited a Stanford Law Review article authored by University of Southern California Law School Professor Erwin Chemerinsky and Catherine Fisk of Loyola Law School. "The Filibuster," 49 Stan. L. Rev. 181 (1997).]

Republican anxiety over impending Supreme Court vacancies has them wanting to get rid of the filibuster before that situation comes up.

"Senate rules have always been changed in accordance with Senate rules," said Gerhardt. But there are too many blocking Democratic votes to make that avenue for ending the supermajority requirement possible. Action by Republicans to change the rules on their own is known as the Nuclear Option.

The meltdown scenario Gerhardt imagines has Senate majority leader Bill Frist calling for a point of order and contending that the filibuster is a endless delaying tactic. The Senate's parliamentarian would be expected to uphold the validity of the filibuster rule, but his decision may be appealed to the president of the Senate, Vice President Dick Cheney. He would declare the filibuster unconstitutional. But his decision is appealable to the body of the Senate, where a majority of 51 Republican senators would also vote that it is unconstitutional. And thus the filibuster is busted.

"Then it is supposed the Senate would explode," Gerhardt said. "The Democrats would walk out and try to make everybody else's life hell."

The same tactic could be used to change other rules, such as the one requiring unanimous consent to do business on the floor of the Senate, he suggested. "You can see a stripping away of the procedures," he said.

Republicans argue that filibustering of judicial nominations is unprecedented, and that resort to the nuclear option is necessary to end this deviation. But "that's not empirically true," Gerhardt said, enumerating the filibustering of Supreme Court nominees in 1881 and the Republican campaign against Democrat Abe Fortas in 1968, plus many other instances. There were 17 filibusters of judicial nominees between 1949 and 2002, "including one Frist voted for," and also filibusters of executive nominations, including two Clinton appointees.

Republicans also argue that presidents are entitled to floor votes on their judicial nominees. "That's also not empirically true," Gerhardt said. "There has never been a president who got votes on all his nominees."

In an extended exchange with students following his remarks, Gerhardt acknowledged that filibusters had been used to block progressive legislation, such as civil rights bills, and its demise might not be a completely bad thing for Democrats.

But the filibuster is in keeping with the Senate's larger purpose, he said. "The Senate is designed to slow things down, to make it difficult for things to happen in the heat of the moment." It's also designed to protect minority viewpoints. The House is the purely majoritarian body. "Is transforming the Senate into the House a good thing?" he asked.

Filibusters are not actually occurring, only threatened. But if 40 or 41 senators say they are willing to close debate on a particular issue, it is not even brought up for the sake of not interrupting progress on other business.

"Filibusters of lower court nominees are below the radar," Gerhardt said. "Most people don't notice and don't care. Supreme Court nominations are a different thing. It's much more controversial [to filibuster those]. I don't think the Democrats could do it more than once successfully. The political stakes are high. There's a high likelihood of a backlash."

Gerhardt rated the chance of a judicial review of the rule change as "between impossible and highly unlikely." The filibuster is unique to the Senate, he noted. No other legislative body in the world has it. But then the Senate is unique in its countermajoritarian function. Fifty percent of the seats in the Senate now represent less than 16 percent of Americans. Thus, by population, Senate Democrats could represent the national majority and this is partly why they feel they must make a stand, Gerhardt said.

Gerhardt said he cannot understand why Republicans would be so ready to sacrifice, likely forever, a tool they have employed often when in the minority. "In the past that argument has been enough to keep things intact," he said.