I don’t like any of Jonathan Bernstein’s proposals to revive the filibuster for judicial nominees. I’m sympathetic to his motivation, as lifetime appointments are a big deal, and I can see the merit in applying some kind of supermajority requirement for those posts. But I also want to discourage the Senate from acting like a parliamentary body, and I would rather loosen the ideological bonds of senators to their parties than strengthen them. I believe that Bernstein’s proposals would be detrimental to my cause.
His main proposal is to set the supermajority required to achieve cloture to the size of the majority. Right now, the Democrats have 53 members with independents Angus King of Maine and Bernie Sanders of Vermont caucusing with them to make a majority of 55. Presumably, then, the Democrats would need 55 votes, rather than 60 or 50+1, to confirm a judge. I don’t know if Sens. King and Sanders would have to assent to this rule, or whether any future independents or third-party politicians would be able to have a say in it. The idea is that any judge who cannot at least win the support of all the members in the majority probably has something wrong with them and should not be awarded a lifetime appointment.
Bernstein throws out a couple of alternatives based on similar thinking, including one where the magic cloture target is set to the number in the minority plus two and one where the target is set to the number in the majority plus two (he erroneously calls this “minority minus two”). In our current Senate, which is divided 55-45, that would mean cloture could be achieved with either 47 or 57 votes, respectively.
Before we really even consider the merits of these proposals or the distinctions between them, we should focus on why any change in the rules is necessary at all. The answer is that the filibuster has morphed from a rarely-used tactic used by senators to protect the rights or interests of their individual states into a parliamentary procedure used by the minority party to empower themselves and obstruct the will of the majority. What united opponents of civil rights wasn’t their loyalty to the Democratic Party, but their regional desire to preserve the Jim Crow laws. Their way of life was under attack, but the Democratic Party was divided on the issue. As much as I abhor the Jim Crow laws, the filibusters associated with them seem to me, in retrospect, to be more legitimate than the modern use that sets a 60-vote requirement for anything that doesn’t have unanimous consent. For example, I would see more legitimacy in a bipartisan filibuster launched by senators from coal-producing states against some environmental legislation than I would from a strictly partisan filibuster intended to water down or kill environmental legislation. In the first instance, a common economic interest would be protected, while in the second instance, it would only be a parliamentary tactic to disempower or even neuter the majority.
Under Bernstein’s main proposal, in which a judge could only be confirmed if every member of the majority supported them, the incentive on the minority side would be to test that prospect in every instance. In our current Senate, a Republican who voted for cloture on a judicial nominee would be letting a vulnerable Democratic senator off the hook. This would increase, rather than decrease, the pressure on Republican senators to treat cloture votes as tests of party loyalty rather than a determination on the merits of the nominee.
Bernstein’s proposal to set the target at minority plus two would allow the majority to confirm their judges in almost every case. In fact, at least in this Congress, it would make it even easier to confirm them than it is under the current, revised, rules. But it would still reinforce the idea that all nominees should face cloture votes, and we know that cloture votes are tests of party loyalty. This problem would be even worse with his proposal to set the target at majority plus two, as the first two Republicans to express support for a nominee would be seen as traitors.
It should be remembered that Robert Bork, Antonin Scalia, and Clarence Thomas were not filibustered. There were no cloture votes on their nominations. When John Ashcroft was nominated for Attorney General, there was no cloture vote. The idea that the minority party should have a veto on nominations is a new development, and it is a result of party unity. Minority parties always had the theoretical power to block unpopular appointees, but only recently did they have the ideological cohesion to actually exercise that power. I don’t think we want to enshrine that kind of ideological rigidity in the Senate rules.
Personally, I do not like it when Democrats cross party lines and vote with the Republicans, but the Senate cannot function when almost every vote must overcome a lack of unanimous consent (a filibuster) and every cloture vote is seen as a test of party loyalty. To protect against bad lifetime appointments it is far better to rely on the way that Robert Bork was defeated. In that case, six Republicans voted against him and two Democrats voted to confirm him. Bork’s nomination was defeated 42-58.
Obviously, because there was a Democratic majority in the Senate at the time, it was much easier for the Democrats to block Bork than it would have been if they had been in the minority. Some of those six dissenting Republicans may have voted to confirm if their vote had been critical. But it is possible to demonstrate that a judge is unfit for a lifetime appointment and to get some members of the president’s party to agree with you.
I’d rather rely on that possibility than to legitimize the idea that all nominees need to be filibustered by making a rule specifically to deal with the resulting filibusters. If the filibuster is going to be used, it should be used by clusters of senators with common interests, not by the minority party as a matter of course.