The Right Coast

February 27, 2005
Senate Filibusters, the Constitution and Star Trek
By Gail Heriot

Senator Jim Talent (R-Mo) dropped by San Diego on Thursday morning. Since Jim and his wife Brenda were both in my law school class, I figured I should drag myself out of bed early in the morning to attend the small breakfast being given in his honor by the San Diego Lincoln Club. (I then wasted the rest of the morning feeling like an underachiever. I'm pretty sure I couldn't even get my mother to vote for me for Senate, but that's another story....)

Jim said a few words about the seemingly-endless problem with judicial nominations. As most readers know, although Republicans now hold a solid majority in the Senate, they still cannot get Bush's nominees confirmed, because they (and their moderate Democratic allies) do not quite have the 60 votes necessary to cut off the filibuster. Rightly or wrongly (and I'm inclined to think it's wrongly), the will of the majority is being thwarted.

I blogged on this topic more than a year ago, shortly after Miguel Estrada withdrew his name from consideration. Let me first quote a portion of that post:

"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 brought 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 to stop action they passionately oppose, small group can get its way on everything while paying little or no political price."

Indeed, the modern "painless" filibuster reminds me of the old Star Trek episode, "A Taste of Armageddon." In it, Kirk and his colleagues run across a couple of planets that have transformed war into a relatively painless affair. Computers designate who would have been killed if an actual attack had been carried out, and those persons are required to report to "disintegration machines" for ... uh... disintegration. But the ordinary business of the planet can be carried on. The problem, of course, is that the incentive to end the war is greatly reduced. Not altogether surprisingly, the war between these two planets turns out to be in its 500th year.

In the Senate, the "casualty" that must report to the disintegration machines is majority rule. But at least the ordinary business of the Senate gets conducted. Under the circumstances, however, it is not at all clear that's a good deal. To me at least, it seems worth it to shake things up a bit to restore democracy.

The obvious solution would be to change the Senate rules to forbid such things. The problem for the Republicans is that, unlike the House of Representatives, which adopts new rules by majority vote after each election, the Senate is a continously sitting body. Its rules, including its rules on filibusters, continue from year to year and can be modified only by a two-thirds majority vote. An ill-considered rule (as I believe the rule permitting such filibusters is) is thus difficult to modify or dislodge.

The next-best solution, according to Jim, is to seek the authoritative opinion of the President of the Senate that the filibuster is unconstitutional. I've not been quite sure what to make of this option. (My fellow Right Coaster Mike Rappaport is an expert in super-majority rules; perhaps I should ask him.) Surely, the Senate could not pass a rule requiring that all future declarations of war be unanimous (and that any modification of that rule also be unanimous). If they could do that, why not just let them pass a rule saying that King George III (or his heirs and assigns) gets to decide all issues. That can't be permissible. On the other hand, regarding all non-constitutionally mandated super-majority rules unconstitutional seems excessive. Where should the line be drawn? Where does this case fall?