Professor Fried on ‘Demagoguing the filibuster debate’

• The following op-ed by Professor Charles Fried appeared in The Boston Globe on Thursday, May 19, 2005.

The Republican leadership may change Senate procedures so that a minority of 41 of the 100 senators could no longer permanently block a floor vote for judicial nominees. This is really a political, not a constitutional fight, and in figuring which side to support, the public should at least not be confused by bogus claims of constitutional principle.

The confirmation process has been politicized beyond anything we’ve seen in the past. Special interest groups have staked out extreme positions on a host of issues — the death penalty, racial preferences in education, and partial birth abortion, to name a few. If a nominee fails to meet a litmus test on any one of these issues, the groups demand a filibuster. All that is required is the announcement by the minority that it is filibustering and the normal presumption of simple majority rule is notched into a three-fifths requirement. Accordingly, filibusters are now more readily available. The predictable has occurred: interest groups have been unleashed, and the confirmation process has become longer, more contentious, and more divisive.

This problem is not limited to the left. If the precedent is set that a minority may filibuster judicial nominees at will, whoever is in the minority will exercise that power to dictate whom the president may appoint to the federal bench. When the Republicans are in the minority, we could expect to see an equally destructive display by the right. The Terri Schiavo debacle has proven that the far right is just as able to forgo principle in favor of power and just as willing to lead its party down the path of foolishness.

The Constitution does not say one word about filibusters, but it does state that ”each house may determine the rules of its proceedings.” Does it speak by implication? In the case of impeachments ”no person shall be convicted without the concurrence of two-thirds of the members” of the Senate. Either house may expel a member for disorderly behavior but only with the concurrence of two-thirds of the members of that house. Treaties must be ratified by two-thirds of the senators present. The president’s veto may be overridden by two-thirds of each house. And to propose amendments to the Constitution, two thirds of both houses are necessary. It is therefore a fair inference that, unless another voting rule is prescribed, in all other cases only a simple majority is required. And no other rule is prescribed for the voting on each house’s rules. To say that in a democracy majority rule is at least the default rule is hardly wild speculation.

What then of checks and balances? That principle is a description of our constitutional structure, not a provision of the Constitution itself, where the term does not appear. In the debates of the constitutional convention and the Federalist, it describes the checking by one branch of government of the power and authority of another. Its use to describe the blocking power of a minority within one of the democratically elected branches — rather than between them — is therefore a rhetorical stretch. Remember that when used to prevent the Senate from voting on a nominee, the filibuster is not a device for assuring deliberation or second thoughts. It gives a Senate minority an absolute veto.

On rare occasions, it has been attempted for judicial nominations, and more rarely still has it succeeded — until 2003. Since then it has been threatened and used as a tool for preventing up-or-down votes on an unprecedentedly repeated, partisan, and systematic basis.

It is true that many of President Clinton’s nominees never made it to the floor. When, however, you ask whether the nominees’ failure was attributable to the will of a Senate majority or of a filibustering minority, the issue cuts in favor of the GOP argument — after all a majority’s blocking of a nominee either in committee or on the floor is an exercise of normal democratic prerogatives and doesn’t speak to the legitimacy of filibusters. So in the end it comes down to politics. Absent some specific prohibition, majorities have the power to vote legislation and change rules–that’s called democracy. But in a democracy, power cannot be, or cannot long be, exercised without public support. And in choosing which side to support, the public should know what is really at issue — a question of politics.

Charles Fried, a former US solicitor general, teaches constitutional law at Harvard Law School.