So the filibuster is convenient now. There is some virtue in not letting majorities trample impassioned minorities. But not always. I’m not sure if I have a fully worked out general metric for when filibusters are reasonable and when they are abusive. The size and permanence of the change are relevant. The passion of the minority is relevant. I’d say that the nature of the change matters too — things than enhance freedom should be less subject to it — but that’s such a contestable term that I can’t put much weight on it.
There are some complicated issues about how many votes, under the Senate’s rules, really should be required to pass the ‘nuclear option’. These aren’t, however, constitutional issues, and I don’t pretend to be expert in the Senate’s rules of procedure. Ultimately, for me this is a political issue about how much pain the majority wishes to inflict on the minority, and how much the minority can inflict pain back, either by bringing the Senate to a halt, framing the issue as the destruction of a hallowed tradition of free debate, or stomping on the minority when the parties change roles.
-- Michael Froomkin
Discourse.net provides a balanced account of his stance on the current anti-filibuster rhetoric, which is not even supported across the board by Republicans. [Talk on the Sunday shows, which I admit to reading secondhand, suggests some "compromise" is in the air in which Dems will agree to submit some of the blocked nominees to a vote, while holding firm on a few. A win on principle, so to speak, but one that is rather symbolic. As noted by Froomkin, some of the ones already confirmed were poor choices to begin with ... even more would be worse.] He strategically will oppose the move, but is not as gung ho as some on the "anti-majoritarian" value of the practice. Thus, he did not sign a letter offered to law professors on the issue.
The letter is a creative mixture of legal brief and political argument. The statements on the number of nominees confirmed and the heavy-handed means used by the current executive and majority are well played. Likewise, concerns on the extended terms of modern day federal judges as well as the use of filibusters and other means to block nominations when the Republicans controlled the Senate is as telling as use of how Democratic senators represent more people on a per capita basis (to suggest the non-majoritarian purposes of the institution) is devious. The idea that all this "minority rights" talk would not be equally such a matter of concern if the political waters were different is almost possible to pass over.
But, yes, the slanted nature of the argument must be addressed. I'd address it thusly: sure but the principle holds. I felt this way in Nov-Dec 2000 and continue to do so: my anger and distress is not simply a matter of politics, but of principle. Froomkin is right to suggest "filibusters" are not defensible in a vacuum. Nonetheless, few political tools are, so why should this be any different? The desire to throw the baby with the bathwater is what makes the "nuclear option" (a tellingly over the top label that its partisans are starting to beg off upon, however unconvincingly) particularly troublesome. Sometimes, especially in times like these, "strategic filibusters" (to possibly coin a phrase) are legitimate.
The opposition to civil rights legislation is offered as a challenge. I'd hope that the use of federal prosecutions to get around sham state trials during the 1960s is not used as well to suggest the protection against double jeopardy is a disfavored one as well. Constitutional principles have good and bad applications. The fact that Democrats by some accounts "represent" more people in Congress, if we put aside the district method (hindered by gerrymanders ... though ones that help both sides, the special abuses by DeLay et. al. notwithstanding) and two senator rule, is interesting. Still, the U.S. Senate is not necessarily a corrupt concept overall ... even if will be anti-democratic (small 'd'). Nor, is the use of filibusters.
In fact, speeding up the 1964 Civil Rights Bill by five or so years (which is really what the filibuster got the racists ... it is unlikely even a straight majority would have voted for it much earlier) might not have been that good of an idea. A major change of race relations and federal power should not be "forced" down the throats of major section of society without that section having a chance to get attuned to the idea. Time helps to do this. And, though it was not well received in many quarters even in 1964, the delay and chance for the Southern leaders to vent and say their piece, probably helped significantly. Other bad uses of the filibuster could be raised, but it works both ways: strong minority opposition also tempered some bad things too.
A couple other things. (1) On the issue of longer years of service for federal judges. Many nineteenth century justices, to name one group, had quite long terms (there were only two chief justices from 1801-63). Surely, improvements in health are a major reason why the average term of service has increased of late. Also, appointment of younger people by Republican presidents (partly for ideological reasons) extended the trend.
I am not sure if there is a compelling need for term limits, but if they are for a reasonable period (15-20yr is the general trend), it seems to me a thing to consider. It would also be reasonable, given the times, that the Dems insist the new Chief Justice be in his 60s (sort of like the new pope ... a 78 year old would be nice too!). Finally, a good idea might be that a person can serve longer, but not on the same level.
(2) An interesting article suggests that judges provide cover for politicians, and various safeguards in place to protect the former group are in place partly for that reason. They take the blame and abuse on certain sensitive issues that should not be left to the will of the majority, and in the process, the legislature runs smoother.
For instance, like it or hate it, if you take the legalization of abortion off the table (putting aside various important subissues), this allows/forces both parties to be more diverse. Thus, Republicans do not just care about abortion, but also taxes and so forth. In fact, the article suggests the principle should be taken on level higher: if we respected international institutions more, some anti-American stress would be taken off the nation's shoulders. Ronald Dworkin in Freedom's Law also offers a form of this argument, arguing in effect that the courts are in the end democracy promoting.*
Or, rather perhaps, republican (small 'r') promoting. We pledge allegiance to our flag in part for the "republic for which it stands." We are not a straight democracy, but a republic, which tempers rule by the people through various institutions and by placing various limitations on the breadth of their power. The reason is that pure democracy at times threatens liberty and order. This principle should not be taken so far that the people's will is ignored too much, since we have long opposed nobility, an elite, that rules above us. The filibuster as well as the courts is far from this stage, current rhetoric notwithstanding, and respect for both (properly handled) should continue.
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* He adds as well that protection of such things as freedom of speech provides each person an equal rights and respect, which also is quite democratic. Democracy is not just important when legislatures are acting, but across society as well. A person can freely speak of the importance of restraining speech, but when legislatures enact anti-democratic laws, it is not quite as kosher (Happy Passover). Various arguments can be made against these views, and surely have, but there is a basic core of truth in looking at things in this fashion.
The article links up to Prof. Balkin, who in particular cites the example of Roe to note: "By taking certain issues off the table in religious-based controversies, the courts enable political parties to organize around bread-and-butter issues like the economy and national defense. As a result, political parties are able to attract broad constituencies instead of narrow sectarian allegiances."