May 1, 2005
Private: Geoffrey Stone on Filibusters of Judicial Nominees
Sunday's Chicago Tribune features an op ed by ACS Board of Directors Member Geoffrey Stone entitled "A `nuclear' attack on the Constitution: Changing the Senate's filibuster rules a dangerous option." Stone is a law professor at the University of Chicago and the author of "Perilous Times: Free Speech in Wartime."
Stone traces the history of the filibuster:
It is useful to go back to the beginning. At the Constitutional Convention in 1787, the framers clearly intended the Senate to play an active role in giving its advice and consent to judicial nominations. Indeed, until the very last day of the convention, the framers had assigned the power to nominate judges to the Senate, rather than the president. They were concerned that an overbearing executive might exercise undue authority if granted the power to nominate federal judges, who would serve for life. It was only on the final day of the convention that the framers decided that it would be too unwieldy for a multimember body to make nominations and reluctantly assigned the responsibility of nomination to the president.
That the Senate would play an aggressive role in reviewing judicial nominations was evident from the earliest days of the Republic. George Washington's nomination of John Rutledge as chief justice of the U.S. Supreme Court was rejected by the Senate because of opposition to his stance on Jay's Treaty. During the 19th Century, the Senate refused to confirm 25 percent of all Supreme Court nominations.
This brings us to the filibuster. The primary objection to the filibuster is that it is countermajoritarian. That is, it enables a minority of senators (41 in the current Senate) to block proposed legislation and nominations. But there is nothing odd about that. In a government determined to avoid "capture" by any faction and designed to protect minority as well as majority interests, our entire government's structure of checks and balances is deliberately premised on countermajoritarian procedures....
The Senate filibuster is a classic example of such a procedure. The filibuster has been recognized by the Senate at least since 1790. Although it has been used most often to force compromise on proposed legislation, it has also been used to encourage compromise on executive and judicial nominations. The filibuster was first used to block a judicial nominee in 1881, when it was invoked against Rutherford B. Hayes' nomination of Stanley Matthews to the U.S. Supreme Court. (Matthews was eventually confirmed.) From 1950 to 2000, the filibuster was used at least 17 times in the context of judicial nominations, most famously in the successful effort of Republicans to derail President Lyndon B. Johnson's nomination of Abe Fortas as chief justice in 1968.
And offers a warning:
This may not, technically, be unconstitutional or unlawful. But it is surely a dangerous abuse of power. Whatever the merits or deficiencies of the filibuster, they have nothing to do with Frist's nuclear option. This is about raw power. It is about power exercised in a manipulative manner purely for the sake of partisan advantage. The greatest threat to American democracy is the risk of capture. It was this danger that worried the framers most. The nightmare scenario is a moment in time in which one faction gains control of the White House, the Senate, the House and the judiciary, then uses that dominance to redesign the processes of government to ensure its perpetuation in power. If ever American citizens needed to be vigilant, it is now.