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.

The Obama Judicial Revolution that Wasn't

Obama’s legacy is largely written because second presidential terms are usually disappointing.  But in assessing his legacy, one needs to look at how successful Obama  has been in remaking the federal courts with his appointees.  By that score he has squandered an Obama judicial revolution.

            Second term presidents including Obama,  confront declining political capital.  Obama is already a lame duck, facing a hostile Republican Congress and a Senate lacking a filibuster-proof Democratic majority.  A president’s party generally lose seats in the second term midterm elections and in 2014 Democrats will have to defend 20 seats compared to 13 for Republicans.  Obama’s agenda is packed with guns, immigration, global warming, and fiscal and economic issues.  The president has too much too do, too little time, and too little support.

            One area where presidents have a chance to leave a mark beyond their term is with their judges.  With appointments to the bench, federal judges that include district and appellate courts and justices to the Supreme Court, can influence the fate of a president’s agenda decades after he leaves office.   The federal courts have become a powerful third branch of the federal government, called upon to determine the constitutionality of many issues, and resolve controversies ranging from who will be elected president in 2000 to the fate of Obamacare.

            Franklin Roosevelt’s New Deal was held up by a hostile Supreme Court and it was not until after he attempted to pack it in 1937 that the president got his way and many of his reforms were upheld.  Eisenhower, in reflecting on his presidency, conceded that he made two mistakes, Earl Warren and William Brennan, and they were both sitting on the Supreme Court.  Court appointments matter.  There is significant evidence that federal judicial appointments  generally decide consistent with the philosophies of the presidents who appointment them. Warren and  Brennan notwithstanding, surprises are the exception to the rule.

            President Clinton filled 370 judgeships during his presidency, including two Supreme Court Justices, 62 for the Court of Appeals and 306 at the district Court level.  By the time he left office in 2000 nearly 44% of the judges were Clinton appointees. George Bush was almost as successful, with 2 Supreme Court, 59 Court of Appeals, and 261 district court appointments.  His 322 appointments constituted  37% of federal judges.

            Obama’s judicial record so far is weak. Unlike Ronald Reagan and his staff who took office with a clear plan to locate and fill judicial appointments quickly, Obama was slow in grasping the importance of judicial selection.  This was especially odd being a former law professor.  He was often criticized for being slow in nominating judges, even when the Senate had a filibuster-proof majority.  After the 2010 elections judicial confirmation slowed to a trickle as Republicans held  up confirmations in hopes of retaking the White House in 2012.

            As of the start of Obama’s second term he has placed 173 judges on the federal bench–approximately 20% of the total.  That includes two Supreme Court Justices, 30 for the court of appeals, and 141 district court judges.  Few are real liberals. There are currently 87 vacancies at the court of appeals and  district court levels.  Obama is unlikely to achieve the numbers that Clinton had, let alone Bush, even if he fills the current vacancies and those anticipated.  He will fined it increasingly more difficult to  secure Senate confirmation of his nominees even if the Democrats hold the chamber, and if Republicans take over in 2014, expect little or no action on them in the last two years of his term.  Obama has perhaps 18 months left to make his mark on the federal courts, and the crowded agenda  his second inaugural speech pronounced suggests that judicial nominations are not high on his list.

            Yes Obama has replaced Justices Souter and Stevens with Sotomayor and Kagan, but that has not shifted the balance of the Supreme Court.  Obama may get a chance to replace one or two more Justices in his second term, but it is not clear that the conservatives on the bench will be leaving. He may replace Ginsburg and perhaps Breyer.  Do not expect Scalia or Thomas to step down in the next four years.  If Kennedy, a swing vote on many issues, steps down, that may be Obama’s best chance to alter the Court’s direction.  But no guarantee here.

            Obama has squandered a chance to remake the federal courts. One need only look to the recent decision striking down his recess appointments as proof of that.  The three judges were appointed by Reagan , George W. Bush, and George H.W.  Bush. Obama’s  major pyrrhic victory on the Supreme Court, upholding Obamacare, came courtesy of Bush appointee Chief Justice Roberts in a 5-4 vote that also drew future limits to the use of the Commerce clause to sustain federal laws.  This June Reagan appointee Justice Kennedy, a Reagan appointee, will probably lead a 5-4 majority striking down some bans on same-sex marriage.  But in terms of Obama redoing the federal courts, he has underperformed on perhaps his most important task.