The Case Against the Filibuster--Why the Democrats Got it Only Half Right

The Senate was right to change the filibuster rule for presidential judicial nominees. Yet it was too little change, too late.  What really needed to be done was to abolish the entire filibuster rule for all Senate business.  Senate Democrats will soon find that unless they do that nothing will get done in the Senate and there will be more Ted Cruz's  reading Dr. Seuss.
    After the Democrats were routed in the 2010 midterm elections I argued that one of Obama’s and the Democrats mistakes was not voting to disband the filibuster rule on day one in 2009.  While for 18 months the Democrats had 60 votes in the Senate and potentially could do what they wanted, they had failed to act as a unified party were  held hostage both by Republicans and also by the conservatives among their own ranks including Senators Landrieu and Nelson.  Had they killed the filibuster they would have done not only Obama, progressives, and their party a favor, but they too would have saved both the party and America from what has not transpired in the last three years–gridlock and a country held hostage by extremists.  Remember, a far better health care bill might have been passed had the threat of a filibuster not existed.
    Three arguments bode against changing the rule–tradition, bipartisanship, and minority rights.  All three are fallacious arguments.  First, arguing that changing the filibuster rule is wrong because it goes against a rule that has a long tradition in the Senate makes no sense.  While history may argue in favor of some things and while maybe at one time the filibuster was a good thing for the Senate, times have changed.  Political parties are more polarized, partisan, and ideological than they used to be (except of course prior to the Civil War) and there is now less of a tradition of compromise and bipartisan than there was even a generation ago. At one time even controversial presidential appointments got votes.  Robert Bork failed to be confirmed as a Supreme Court Justice but he got a floor vote.  Clarence Thomas got a floor vote and was confirmed.  Democrats could have filibustered both but did not.  At one time nominees got voted on but times and circumstances have changed in the Senate. Thus, as the Senate changes so must it rules.
    Moreover, one should not forget that the “nuclear option” to change the filibuster rules on judicial nominees was originally a Republican idea.  In 2005 Republican Senators Bill Frist and Trent Lott, frustrated with Senate Democrats who were angry that the latter were blocking George Bush’s judicial nominees, proposed doing then what Harry Reid and the Democrats did this past week.  It was only a compromise and a backing down by Democrats then that prevented the rule change from going into effect back then.  What comes around goes around.
    Second, as just noted, there is less bipartisanship in the Senate now than in recent memory.  At one point it was less likely that the Senate needed 60 votes to get anything done.  But clearly we have seen how especially Senate Republicans have made it clear that they are now joining their House colleagues in making it impossible for Obama to get anything done.  Remember, after the 2010 elections Senate Republicans made it clear that their number one objective was to prevent Obama from getting anything done.  The filibuster now is being used not really to protect rights of minorities, but simply to be obstructionist.
    This leads to the third argument.  Senate Republicans argue that the filibuster is needed to protect minority rights.  This is an aggregated if not false argument.  For many the image of the filibuster is that of Jimmy Stewart in Mr. Smith Goes to Washington, speaking until he is hoarse in defense of principle.  Yet the reality is that more often than not the filibuster has been used to thwart minority rights than to protect it.  The filibuster was deployed in 1946  to block the permanent creation of the Fair Employment Practices Committee.  Strom Thurmond filibusters in an attempt to stop passage of the 1957 Civil Rights Act.  Robert Byrd uses it in an effort to halt the 1964 Civil Rights Act.  The reality is that the filibuster is invoked to prevent prevention of minority rights, not to sustain them.
    But more importantly, while Republicans argue that the recent change to the filibuster rule will hurt minority rights, the reality is that the only minority it hurts if at all are Republicans.  They are invoking filibuster to argue that their rights need to be defended–they are the minority they needs protection.  How odd an argument.  The filibuster is not about protecting party rights, it is about protecting the rights of the people.  Moreover, the Senate and Congress in general are not supposed to be counter-majoritarian bodies.  They are supposed to majoritarian institutions reflecting majority will.   And even if it were the case that the Senate is supposed to embody anti-majoritarian structures–as political scientist Martin Diamond once argued–the representation structure of it granting all states the same number of Senators, along with bicameralism, is more than enough to protect minority interests.
    The first step in reforming Congress for the good is eliminating the filibuster for everything.  It is antiquated rules that is waxed over romantically for reasons that are hard to fathom.  The changes made last week go only part way toward reforming the Senate.  This partial change will no doubt polarize the Senate even more, perhaps leading the Democrats in frustration to finish the job on the filibuster that they already started.

Thoughts on Kagan and the Confirmation Process: Creating Potted Plants

So what did we learn about Elena Kagan during her confirmation hearings? Precious little beyond the vaguest of generalities is my impression.

For three days the Senate Judiciary Committee held confirmation hearings for Kagan. I listened to most of them and commented on them for Minnesota Public Radio (you can listen to the interview here). There were two items that most struck me about the hearings. First, that the hearings were not about Kagan. Second, Kagan gave us no more than textbook answers or that any opinion she held or view expressed was disavowed.

The hearings were really perfunctory. Kagan was going to be confirmed. Her appearance was a pretext for other political agendas. Thus, speeches by the Senators were previews of the 2010 election, or efforts to make news back home, or posturing for constituencies. But bring together that this is an election year, she does not change the balance of power on the court, she worked in the Obama administration, and she said nothing, the combination is a recipe for the hearings to be political posturing. That is what we received. This is no different than many other hearings in the past, but some thought it would be different given Kagan’s criticism of vacuous confirmations in the past.

Kagan recanted on her demand for candor. Some of this is understandable, potential justices have to be wary of saying too much, less they prejudge cases that compromise their integrity. This is a legitimate concern. But there is also the political demand to say very little to make it possible for senators to vote for you–or at least not against you. And then there is a demand to be open and answer questions in order to educate the public and allow the Senate to do its constitutional duties. All three need to be balanced and the trend now seems to be to say little.

But having said that, what struck me as odd was the number of times, when pressed about an issue or asked about a case or something she wrote, Kagan said that she had not read the decision, that she was simply working for the president, or the views did not express her own. She also seemed to say she did not have opinions on certain subjects or that her mind was open. I find all of this hard to believe. She is a well educated ivy league law professor, former Harvard Law School dean, and solicitor general. She could not have gotten that far without forming her own opinions on many legal matters.

I teach law. I read cases and opinions and I am expected to have digested them. I would be remiss if I did not. I find it hard to believe she has not read or formed opinions about so many of the things she was asked about. It reminds of how when Clarence Thomas, when asked at his confirmation hearings, whether he had read Roe v. Wade (the abortion case), and he said he had never discussed it in law school. This is hard to believe given that Roe was decided while he was in law school! Thus, for Kagan, as well as Thomas, they seemed not to be doing something that I would expect of every good lawyer or law professor–read, think, and form opinions about the law.

Moreover, Kagan gave textbook answers to so many questions. These were answers we teach in law school as almost rote answers. For example, always try to avoid deciding a constitutional question and decide on statutory grounds. If making a statutory decision, do xyz. Kagan repeated this mantra.

My criticism is not totally on Kagan but on the process of judicial selection. The confirmation process is a charade, but judicial elections are equally empty in terms of what we learn about judicial candidates. I am not sure there is a good way to select judges in ways that provide meaningful information about them, whatever “meaningful” should signify. We want accountability but in a democracy that is majority rule balanced by respect for minority rights, and where judges are supposed to assist or take a primary role in striking that balance, I am not sure what judges should be allowed or encouraged to discuss.

But one thing is certain. In 1986, in commenting on the Bork confirmation, Judge Richard Posner said judges are not potted plants. They are learned, have views, and exercise discretion. Supreme Court Justices should not be potted plants, but the confirmation hearings encourage them to act like that.

Final note: One caller to MPR asked me if I was troubled about the fact that all the justices now are east coast, Ivy League Harvard types. Even though I am from NY, I said yes. While the nine justices do differ in many ways, they (and the Obama and before that the Bush administration) represent a narrow band of elites. Senator Feingold caught it well on Tuesday when he asked Kagan how she could understand the plight of those in Stevens Point. She said she could. I doubt any of the justices or most of the Obama or previous Bush Administration could. Senator Franken caught it well when he discussed how the Court has a real impact on the lives of real people. His speech was a plea that we need to remember real people. I fear this Court and Ivy covered world from which they come cannot do that.