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Senate Filibusters
By Gail Heriot

When I look back over the notes of a talk I gave to Case Western Reserve law students early last November, I feel a little foolish. The talk was supposed to be on the judicial confirmation crisis. But the day after Election Day, when the voters had just restored the GOP majority in the Senate, it appeared to be a dog of a topic. Whatever one thought about whether a "crisis" had existed the day before, it seemed very unlikely that the contentious delays that had characterized the process in 2002 would continue once the new Senate convened.

As the plane landed at Cleveland International Airport, I was busy reconfiguring my notes to emphasize the long-term picture--how the confirmation process was becoming increasingly hard-fought (even nasty) whenever the White House and the Senate are held by different parties. I didn't worry about being wrong when I predicted that the problem was going to recede temporarily with the new GOP majority. Instead, I was worried that I would put the students to sleep.

We all know now that I was wrong–at least partly. Under Orrin Hatch, the Committee on the Judiciary did indeed speed up the process. But Bush's opponents proved themselves willing to play a serious game of hardball when, much to my surprise, they filibustered some of his appellate nominees. This strategy has caused serious setbacks to the Bush's efforts to staff the judiciary--notably Miguel Estrada's recent withdrawal as a nominee for the U.S. Court of Appeals for the D.C. Circuit. Estrada had a majority of Senators behind his nomination, but opponents of the nomination successfully prevented the issue from coming up for a vote.

Allow me to say a few words on the subject of filibusters–things I would have said to the Case Western students if I had only had a bit more foresight.

The word "filibuster" comes from the Spanish word "filibustero" meaning pirate. The Spanish word can be traced back to the Dutch "vrijbuiter," which also means pirate. The filibusteros of the nineteenth century had a nasty habit of taking over the governments of small Latin American and Carribean countries, just as Senators essentially take over the Senate when they filibuster in the familiar manner. In our own time, we might have called them "hijackers," since they hijack Senate operations for their own purposes.

The "modern" filibuster, of course, differs from what many of us recall from Jimmy Stewart's performance in Mr. Smith Goes to Washington. In Stewart's time, a would-be filibusterer had to talk, talk, talk and talk sometimes around the clock. No Senator could conduct an effective filibuster by himself, since he would eventually collapse. But two or more could operate as a tag team and bottle up Senate operations indefinitely, sometimes sleeping on cots in the Senate cloakroom. The United States government could be broght to its knees.

After the notorious filibusters by Southern Democrats during the Civil Rights Era, Senate rules were changed to make the process less disruptive. A member of the Senate can now put a matter on hold. But sixty Senators can vote to cut off debate. And in the meantime, other Senate business can be conducted without hindrance. It's thus relatively painless for all concerned. There are no marathon sessions, no readings from the Cleveland telephone book, and no Jimmy Stewarts.

It seems to me there are two possible reasons to support the concept of a filibuster. Neither reason, however, would support the use of the filibuster against the Estrada nomination.

First, there are occasions in which debate has been called off prematurely by a majority that mistakenly believes that it has heard it all. Allowing a minority to force the majority to hear more can be a good thing. But if the issue is whether the Senate has fully debated the issue, there ought to be limits to how long Senate action can be delayed. A week? A month? Two months? Surely at some point it becomes obvious that the point is not the need for further debate but rather the desire to thwart the will of the majority. The current method by which the Senate rules attempt to limit abuse is the ability of sixty Senators to cut off debate. That method is ineffective when the Senate is split 59 to 41. It mustn't be overlooked that a majority of 59 is still a very large majority and at some point its will ordinarily ought to be respected.

That leads me to the second reason that someone might favor the filibuster. Now and then an issue comes along about which the minority feels passionately and the majority does not. Deference to the will of the minority may sometimes be appropriate in those cases. The traditional filibuster is one way that the minority is able to register that passion.

The problem is that the modern "painless" filibuster is an ineffective way to separate passion from pique (or even mild disagreement). No one imagines that Ted Kennedy or Barbara Boxer would have been willing to bring the United States government to its knees–shut down the appropriations process, allow Social Security checks to bounce and freeze all federal activity--just to keep Miguel Estrada off the D.C. Circuit. Indeed, it is difficult to believe they would have been willing to stay up past bedtime for that purpose. The modern filibuster makes opposition easy and painless. Rather than allowing a small group of Senators can stop action they passionately oppose, small group to get its way on everything while paying little or no political price.

It seems to me that this is as good a time as any to re-think Senate rules in some way that would draw a distinction between these two very different purposes for the filibuster.


posted by Gail at 9/26/2003 04:16:00 PM