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?