The Right Coast

April 26, 2005
The Constitutional Option
By Mike Rappaport

Earlier in the week, I participated in a panel debate, hosted by the American Constitutional Society of Stanford Law School, on the nuclear or constitutional option. Other members of the panel included Judge Stephen Reinhardt, Jeff Berman (former Chief Counsel to Senator Schumer) and moderator, Professor Pam Karlan. I had a fun time going into the lions den.

I argued three main points: First, the constitutional option of changing the filibuster rule with a majority vote is constitutional. Second, it is extremely difficult to predict what the effects of a decision to use or to not use the constitutional option will be. Third, the ideal rule for confirming judges would be a supermajority rule for Supreme Court nominees, but only a majority rule for circuit and district court nominees. The supermajority rule for Supreme Court nominees, however, should only be adopted through a bipartisan agreement between the parties.

Here is an excerpt from the text of my talk about the possible effects of using or not using the constitutional option:

First, consider the effect of not using the constitutional option. Some people argue that the Republicans should not use it so that they can preserve the filibuster for use when they are in the minority. This argument might be right, but it also might be mistaken. After all, how do the Republicans know that if they refrain from using the constitutional option, the Democrats won't use it against Republican filibusters in the future?

Why would the Democrats use the constitutional option, when they now oppose it? One reason is that our current situation is the result of downward spiral of each side taking more extreme actions. First, the Democrats and Republicans refused to schedule hearings for the other party's nominees. Then, when the Democrats lost the Senate, they took the next step of filibustering. Now, the Republicans are considering yet a further step – the constitutional option. If the Democrats were willing to take the step of filibustering, isn't it possible that they would respond to a filibuster with the constitutional option?

One might think that the Democrats would be reluctant to use the constitutional option because they are now opposing it. But both parties switch positions on issues all the time. For example, the Democrats' present position is a change from the prior view of most Democrats (other than Southern ones) in favor of something like the constitutional option, which these Democrats endorsed and were prepared to use in 1975.

Now consider the effect of using the constitutional option. Some people argue that if the Republicans use the constitutional option, that will lead to divisiveness and a slow down in the Senate. Perhaps, but perhaps not. In the past, when something like the constitutional option was seriously threatened, the two sides worked out compromises that involved weakening the filibuster. That might happen this time, too.