Filibusters Will Not Prevent Trump from Filling the Scalia Seat

There is much to be said in favor of a supermajority rule for confirming Supreme Court Justices. As Mike Rappaport and I argue in the Judicial Filibuster, the Median Senator and the Countermajoritarian Difficulty, the result of such a rule will be more moderate justices, less likely to go to any extremes. At a more theoretical level, a supermajority rule will temper the countermajoritarian difficulty — the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches.   Judicial review under this confirmation rule would be more likely to impose the long-term limitations on popular government that most people themselves desire.

The filibuster, however, is a weak supermajority rule, because a partisan majority of  Senators can change it any time through the so-called nuclear option. Despite my preference for a supermajority confirmation rule, the filibuster is unlikely to survive, if Senator Chuck Schumer has implied, the Democrats are inclined to filibuster Trump’s Supreme Court nominees. Noah Feldman is thus wrong in claiming that it is plausible that the Supreme Court will continue to operate with only eight members.

First, the filibuster for Supreme Court confirmations has been gravely weakened by the previous Democratic controlled Senate’s elimination of the filibuster for other nominations, both for the executive branch and for the lower federal courts. That act showed that Democrats would get rid of the filibuster when it was expedient to do so. Indeed, when Clinton seemed likely to win, many Democrats were openly talking about getting rid of the filibuster for the Scalia vacancy.  A decision by the Republican Senators to retain it only to have Democrats toss it in the future would make them look like chumps.

Second, the stakes of the Scalia vacancy are very high given that a Democratic appointee would change the median justice from Anthony Kennedy to Stephen Breyer. The possible transformation of the Court underscores the fear of each party that the other would get rid of the filibuster if necessary to fill this seat.

Third, as Mike and I have noted, moderate Senators would like to maintain the filibuster, because it tends to make the nominee more moderate. But with party polarization, there are few Senators in the middle.

It is possible that the Republican Senate would tolerate the filibuster of the first nominee, but it inconceivable that it would let the Democrats filibuster a second. Trump will appoint Scalia’s successor.

The weakness of the filibuster underscores the advantages of constitutional entrenchment. If supermajority rule is wise, as I believe it is for Supreme Court confirmations, an optimal constitution would include the rule within its structure. That rule would actually force compromise because it could not be changed by ordinary politics.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. Devin Watkins says

    I think there are more downsides to a supermajority requirement then you might think. I can think of several big ones:

    1) The first biggest problems I have seen with such a super majority requirement is the use of it to undermine and reject qualified candidates because they are “too” qualified. This doesn’t happen as often at the Supreme Court level, but especially for lower court judges. When an up and coming new star lawyer is proposed to be on a lower court, many times those in the minority (those that don’t hold the white house and so presumably do not support the kinda of judicial philosophy espoused by the potential candidate) are far more likely to filibuster that nominee than someone with not so stellar qualifications. They see it as starving the other team of the next potential Supreme Court justice, therefore furthering their cause. I think a great example of this is Miguel Estrada, he even received a unanimous “well-qualified” rating from the American Bar Association which tends to rate conservatives low (Justice Thomas got 12 “qualified,” one abstention, and two “not qualified”). Leaked memos by Democratic Senate Minority Whip Dick Durbin made it clear why he was filibustered, the desire to keep Estrada off the court partially because “he is Latino,” and because of his potential to be a future Supreme Court nominee. I think those two reasons are linked (a well qualified latino is going to be harder for democrats to reject politically if he were nominated to the Supreme Court then an equally qualified white person).

    2) The other at least potential problem is that it produces very little change on the Court. If every justice must get some of both democrats and republicans to agree, then the kind of person who can get past that hurdle are going to be very similar. This might be a good thing (increased stability in the law), but if you believe there are major problems with the current jurisprudence on the Court, that would be a bad thing.

    3) In a situation where the minority has a significant power in blocking nominees, this increases the requirement to have a “squeaky clean” paper trail. You better not have said anything too “controversial” in the past or you wont have a chance. People are “trimming their sails” as the saying goes to make sure that nothing can be used against them in a potential confirmation hearing. But what this ends up usually meaning is that very few senators actually know what they are voting for. Its more a blank slate and a roll of the dice. This undermines popular accountability in the Court. And secondly it puts those that want to seek such a position in a horrible position of refusing to say publicly their views on controversial subjects. Especially of our best and brightest we are pushing them to not tell us what they think. Not very good for our society. In a situation where you have a pure majority rule for justices, you can have party line votes. Such party line votes will commonly overlook some of the more controveral things that person has said in the past if they are ideologically consistent with the majority. While judges shouldn’t have policy positions, they should have an ideology: A way of comprehensive way of looking at the world. Originalism, living constitutionalism, etc. are all judicial ideologies, ways of approaching judicial problems. A strongly committed originalist in the mold of Scalia and many republicans are going to overlook some controversial things they might have said. But the minority will use those things to block them.

  2. Ray Balzer says

    This whole approach is lacking.

    I do agree that the correct approach requires constitutional change, but I’m in favor of a different way. In brief, the court needs to be made inherently non-political, such that the court justices almost do not matter. They rule on narrow interpretations of the law, mostly only affecting narrow groups. They are kept inline by checks and balances on their power as well as making it easy to overturn rulings that are inappropriate and making it fairly easy to throw justices off the court it they abuse their power.

    I’ve developed a set of eight checks on judicial power. If implemented, fighting over court appointees would become a distant memory.

    We would likely need a Convention of the States in order to implement this, since the Congress has shown no interest in genuine reform. I’m still trying to get someone on the national stage to champion this solution.

    • Devin Watkins says

      So who is going to be able to “easy to overturn rulings that are inappropriate”? The only obvious choices are Congress and the states. But the Court is designed to prevent abuses by Congress and the states, it makes little sense to allow them to overrule the Court. Imagine for instance a majority of the state or congress wished to create a seditious libel law prohibiting saying bad things about government. Such a statute would be unconstitutional under current precedent, but if Congress or the states could just invalidate any such decision, then effectively there wouldn’t be any First Amendment limits. Maybe if you create an entirely new branch of government just designed to limit the Courts, maybe that would work. But then you again have the problem of who is going to watch the watchers? What if they start invalidating good rulings?

      If it is “fairly easy to throw justices off the court,” how is it not going to be political to decide to do that? Imagine if the impeachment of a justice was a simple majority, my guess is you would see that happen a lot more often, especially in a situation like today with republicans in charge of both houses of Congress and 4 democrat appointees on the Court. A low bar for removal makes party line votes far more likely inherently making such decisions fairly political.

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