Geof Stone on Liu Nomination and Judicial Filibusters

Judicial Filibusters: Partisanship Run Amok
Geoffrey R. Stone
The Huffington Post
May 20, 2011

If anyone needs proof of how destructively polarized national politics has become, one need only consider yesterday's vote in the Senate on President Obama's nomination of Goodwin Liu to serve on the United States Court of Appeals. First, though, a few words on the filibuster. Under Senate rules, a minority of only 40 of 100 senators has the power to filibuster to defeat a proposed statute or nomination, unless 60 senators vote to invoke "cloture," which ends the filibuster and restores majority rule.

The filibuster is designed primarily to protect minority interests against persistent and overbearing dominance by an entrenched majority. Because excessive use of the filibuster would enable a minority of senators to paralyze both the Senate and the United States government, it has traditionally been used quite sparingly, usually only in exceptional circumstances.

This has been especially true in the context of judicial nominations. Indeed, the filibuster was not used to block a judicial nomination until 1968, when a coterie of conservative Republicans and southern Democrats used the filibuster to defeat Lyndon Johnson's nomination of Abe Fortas to serve as Chief Justice. The filibuster was not used against a Court of Appeals nominee until 1980, when Senate Republicans unsuccessfully tried to block Jimmy Carter's nomination of (future Supreme Court Justice) Stephen Breyer to the Court of Appeals. Although the judicial filibuster has been used increasingly since then, by Democrats and Republicans alike, it still has been used only three times in all of American history to block a straight up-or-down vote on Court of Appeals nominees - before yesterday.

Faculty: 
Geoffrey R. Stone