This week’s Legal Affairs Debate Club featured an exchange between Duke’s Erwin Chemerinsky and WashU’s Steven Smith. Chemerinsky defended maintenance of the filibuster, including its use for judicial nomiantions, whereas Smith called for modest reforms (though did not endorse the so-called “nuclear” option).
On debate club, Chemerinsky argued that curtailing filibusters would be “unjustified and illegitimate.” The filibuster “is a desirable check in a system that is based on checks and balances,” Chemerinsky asserted, claiming that his argument “would be the same whether the President is Democratic or Republican.” Yet Chemerinsky’s support for filibusters is a relatively recent development, as I have noted before. When Republican Senators were using other (non-filibuster) means of obstructing judicial nominees, Chemerinsky argued the filibuster was undemocratic, and its entrenchement in Senate Rules potentially unconstitutional.
In debate club, Chemerinsky suggests:
The filibuster has existed since the earliest days of American history. Those who wish to eliminate a practice after 200 years have a heavy burden to meet
Yet in 1997 Chemerinsky wrote:
The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.
In his newfound position as defender of the filibuster, Chemerinsky also makes some questionable assertions. For instance, he claims that:
Without the filibuster, there is no limit at all on the ability of the President to put anyone he wants on the Supreme Court, no matter how extreme the individual’s views.
This is clearly false. Senate confirmation is still required of all nominees and majority control of the Senate by the President’s political party is no guarantee that a nominee will be confirmed. President Johnson’s nomination of Associate Justice Abe Fortas to Chief Justice failed in a Democratic Senate, and Republicans defected from President Reagan’s nomination of Robert Bork 1n 1987. The fact is there are many Republican Senators who would consider opposing a truly extreme Supreme court nominee. And as for Bush’s lower court nominees, every filibustered nominee to date enjoyed support from multiple Democrats.
Speaking if Justice Fortas, Chemerinsky puts quite a spin on the history of his failed nomination. According to Chemerinsky:
In October 1968, Republican Senator Strom Thurmond led a successful filibuster preventing the confirmation of Abe Fortas as Chief Justice and Homer Thornberry as Associate Justice on the grounds that a lame duck President should not fill Supreme Court vacancies.
This is misleading on several counts. First, the “filibuster” of Fortas was bipartiasn. Second, Fortas did not even receive a simple majority vote in his favor in the single cloture vote during the debate over his nomination. Third, there were serious ethical allegations against Fortas that formed the basis for some Senators’ opposition — allegations similar to those that eventually forced him from the bench. I’ve posted more on the Fortas nomination here.
I understand why some liberals are upset at Republican obstruction of juducial nominations during the Clinton Administration. Yet, as I’ve noted before, blocking judges did not begin in the 1990s (see also here). Just as Republicans defended their obstruction by pointing to the prior bad acts of their Democratic colleagues, Democrats now do the same in return. Alas, it’s an unending cycle of political escalation.
In the instant case, if something other than altered political fortunes explains Chemerinsky’s change of heart, I have not seen it. Chemerinsky has not, to my knowledge, offered any account for his newfound support of filibusters. Until he does, simple politics will be the best explanation.
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