The Right Coast

March 03, 2005
The Filibuster
By Mike Rappaport

Over at Legal Affairs Debate Club, the desirability of the filibuster and the constitutionality of changing it through the so called "nuclear option" were debated by Erwin Chemerinsky and Steve Smith. Peculiarly, Chemerinsky published an article in 1998 that was somewhat critical of the filibuster, but now he comes across as much more of defender of it. The main change in circumstances appears to be that Republicans wanted to use it back then, but Democrats employ it today. Perhaps there is some other distinction I am missing, but Chemerinsky says nothing about his change in position. For a criticism of Chemerinksy on these grounds, see this post over at the Volokh Conspiracy.

I suppose that I am particularly sensitive on this matter, because I have written extensively in this area and have tried to take positions that are not driven by the partisan interests of my preferred political party. While I believe that the filibuster is constitutional, I also argue that it cannot be entrenched against change and therefore the so called nuclear option, where a majority would amend the filibuster rule, would be constitutional. (John McGinnis and I have an op ed piece making this argument, which is supposed to be published soon.) While this position supports the Republicans, John and I have also written in favor of using a supermajority rule to govern the confirmation of Supreme Court justices. After all, if the Supreme Court functions like a sitting constitutional convention, rewriting the Constitution as it sees fit, then there is an argument that the justices should be required to secure supermajoritarian support just as constitutional amendments are required to secure such support.

I have also argued against the Republicans concerning recess appointments. While I generally support President Bush’s judicial nominees, and I believe that the recess appointment of judges puts pressure on the Senate to compromise with the President, I believe that these recess appointments are unconstitutional. It is not that judges cannot be recess appointed. Rather, the recess appointment power only confers narrow authority on the President to make recess appointments when the Senate would not be in a position to confirm a nominee – in particular, when the vacancy arises during the recess of the Senate and the recess appointment is made during that recess. President Bush’s recess appointments, like those of previous Presidents, both Democratic and Republican, do not satisfy this requirement.