A Short History of Judicial Filibusters: Partisanship Run Amok
In this piece, originally published on May 20th by the Huffington Post, Geoffrey R. Stone explains the filibuster in the context of judicial confirmations. Stone is a 2010 – 11 visiting scholar at the National Constitution Center and the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He will be appearing at the Center on June 6th at 6:30 p.m. along side Judge Kent Jordan of the U.S. 3rd Circuit Court of Appeals in a public conversation about “judicial activism.”
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.
Filibusters is the subject of a monograph in the Center’s Constitutional Spotlight Series, “Bench Brawl, Judicial Confirmations and the Constitution.”
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.
Yesterday, 42 Senate Republicans (joined by one conservative Democrat) used the filibuster to block the Senate’s consideration of Goodwin Liu. Although 53 senators voted to invoke cloture, the minority succeeded in preventing the Senate from even voting on the nomination.
So, who is this Goodwin Liu whom Republicans are so determined to defeat? He has been described variously by conservative senators and pundits as a “dangerous judicial activist,” an “extremist,” a “radical,” and an “aggressive left-wing ideologue.” Such characterizations of profoundly disserve our nation. They exemplify the sort of mindless and irresponsible partisanship that does serious damage to America’s political culture and has brought Congress itself into disrepute.
Who really is Goodwin Liu? He is a graduate of Yale Law School, a Rhodes Scholar, and a former law clerk to Justice Ruth Bader Ginsburg. He worked for several years in the U.S. Department of Education and as senior program officer for higher education at AmeriCorps. After a stint in law practice, he joined the faculty of the University of California (Berkeley) School of Law, one of the most distinguished law schools in the nation. At forty years of age, he is now Associate Dean of the law school and a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court. He has published important and influential scholarly work in such distinguished law journals as the Stanford Law Review, the Yale Law Journal, and the New York University Law Review. He has won acclaim both as a scholar and teacher, and he has served on the boards of Stanford University, the American Constitution Society, the National Women’s Law Center, and the Alliance for Excellent Education. In 2008, he was elected a member of the American Law Institute – a rare honor for one so young.
But is Goodwin Liu nonetheless an “extremist,” a “radical,” and an “aggressive left-wing ideologue,” as his detractors assert? To answer that contention, listen to some of his conservative supporters, who include a virtual Who’s Who among the nation’s conservative legal community: Kenneth Starr lauds not only Liu’s “obvious intellect and legal talents,” but also his “openness to diverse viewpoints as well as his ability to follow the facts to their logical conclusion, whatever its political valence may be.” John Yoo praises Liu as “a very good choice,” Clint Bollick strongly supports Liu’s nomination because of his “fresh, independent thinking and intellectual honesty,” and Richard Painter describes Liu as “an outstanding nominee whose views fall well within the legal mainstream.” I could go on, but you get the point.
Although Liu’s right-wing critics lift carefully-selected passages out of context from his writings to distort his positions, those who actually understand – and, more importantly, care to understand – his views are universally respectful of his positions, whether they agree with them or not.
It is true, of course, that Liu is a “liberal,” just as Antonin Scalia is a “conservative.” Senators may legitimately vote against nominees if they strongly disagree with their views (note, however, that every Democratic senator voted to confirm Scalia in 1986), but the use of the filibuster to prevent a straight up-or-down vote on a nominee like Goodwin Liu is entirely inappropriate.
To justify their behavior, some Republicans invoke the Bork nomination battle as a relevant precedent, but their thinking on that score is completely wrong-headed. Bork was not the target of a filibuster. He was defeated in a straight up-or-down vote of 58 against and 42 in favor. If Liu were given such a vote, he would clearly be confirmed. The distance we have travelled over the past twenty-five years is a good measure of the extent to which we now live in a world of partisanship run amuck.