The Right Coast
March 11, 2005
Amending the Filibuster Rule: The Constitutional Option
By Mike Rappaport
My op ed piece, written with John McGinnis, on the filibustering of judicial nominees has now been published. The article makes three basic points. First, it argues that the so called nuclear option is a fully constitutional mechanism for changing the filibuster rule. In fact, it is constitutionally required that a majority of the Senate be able to change the filibuster rule; otherwise, a majority of the Senate could pass norms that would be as entrenched against change as constitutional provisions are.
The Senate majority's power to modify the filibuster is strongly supported by constitutional principles. Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct. The first view – advocated most recently by Senate majority leader Bill Frist, R-Tenn. – is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.The article’s second basic point is that the so called “nuclear option” is neither unprecedented nor likely to interfere with the Senate’s efficient functioning in the future:
Both Republicans and Democrats forget, however, that the existing filibuster rule itself was a product of a process very much like the so called "nuclear option." The existing filibuster rule was enacted at the beginning of the congressional session in 1975. At that time, Sen. Walter Mondale, D-Minn., and James Pearson, R-Kan., proposed to change the old filibuster rule to permit 60 senators, rather than two-thirds of those voting, to end debate.Finally, there is an argument for employing an express supermajority rule for the confirmation of Supreme Court Justices. While the present filibuster is defective since it is applied unevenly and is only accepted by one party, it might be desirable for the Senate through a consensus to require the support of a supermajority for the confirmation of all Justices. To make it fair, this rule might be applied beginning with the nominees of the next President, who might be a Republican or a Democrat:
If modern judges feel free to amend the Constitution in the guise of interpreting it, there is a strong argument that an express supermajority confirmation rule might be beneficial. After all, through its express amendment process the Constitution requires a stringent supermajority rule before politicians can establish new norms that will bind future generations. If judging has become just politics by other means, it does seem strange to permit justices confirmed by a mere majority to start imposing their values on the rest of us.