A 'nuclear' attack on the Constitution

A 'nuclear' attack on the Constitution; Changing the Senate's filibuster rules a dangerous option
Geoffrey R. Stone
Chicago Tribune
May 1, 2005

The Bush administration and Senate Majority Leader Bill Frist are frustrated. The Senate has confirmed "only" 90 percent of the president's nominees for the federal bench. So now they are threatening to cripple a centuries-old Senate procedure in order to prevent any further "obstructionism" by the Democrats. This has aptly been labeled "the nuclear option."

The key issue is the filibuster. Under Senate practice, 60 votes are necessary to invoke cloture against a filibuster. Because the Republicans control only 55 votes in the Senate, they cannot prevent the Democrats from using the filibuster to block confirmation of a judicial nominee. Frist wants to eliminate the traditional supermajority requirement for cloture and allow a simple majority to shut off debate. This proposal is unwise, cynical and contrary to long-standing Senate tradition.

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.

Consider the Electoral College. George W. Bush won the 2000 election even though he received 500,000 fewer popular votes than his opponent. What could be more countermajoritarian than that? Indeed, the Senate itself was quite consciously designed to be countermajoritarian, with two senators from each state, regardless of population. As a consequence, although the Republicans currently have 55 senators, they represent well under half the people in the United States. Countermajoritarian processes are fundamental to the American system because they protect substantial minority interests against the bullying of marginal and transitory majorities.

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.

Now, however, Senate Republicans threaten to change the Senate rules to prohibit any filibuster of a judicial nomination. Even worse, although Senate rules provide that any change to the filibuster requires the support of 60 senators, Frist has declared his intention to override that rule as well. In this brave new world, 51 Republicans will arrogate to themselves the authority to change the rule on changing the filibuster so that 51 Republicans can then absolutely determine, without any meaningful input from anyone else, who will serve on the federal bench. 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.

When President Franklin D. Roosevelt attempted a similar maneuver with his court-packing plan in the 1930s, Democrats as well as Republicans rightly objected. We can only hope that at least a handful of Republicans have the independence, the courage, the integrity, and the commitment to our nation's most fundamental values to stand up to Frist's dangerous and cynical nuclear option.

CORRECTION: Clarification added May 2, 2005. Democrats and Republicans have used the term "nuclear option" to describe a change to the Senate rules that would require only a simple 51-vote majority to end a filibuster. Current rules require 60 votes to cut off unlimited debate that typically has been used to stop legislation and block presidential nominations strongly opposed by a minority. While it is unclear which party first used the term in relation to Senate procedures, Republicans used it at least as early as 2002 to describe their possible retaliation against Senate Democrats who then controlled that body and blocked President Bush's nomination of Judge Charles Pickering to the federal appellate court.

Geoffrey R. Stone is a law professor at the University of Chicago and the author of "Perilous Times: Free Speech in Wartime."

Copyright 2005 Chicago Tribune Company