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On The Use of the Filibuster to Block Judicial Appointments

by Kent M. Pitman (Wednesday, March 16, 2005)

If it takes a super-majority to change the constitution, it should also take a supermajority to change those who interpret the constitution. Otherwise, you create a loophole in which one can change the effect of the Constitution by installing judges who interpret existing wording different ways (whether by more strict conservative readings or more liberal readings).

I think it is a design error in the Constitution that court appointment, especially the Supreme Court, but probably at all levels, does not require a supermajority to assure that the public is comfortable with who is doing the interpreting of so basic a document as the Constitution.

If the filibuster is the only way to assure that we have a supermajority agreement, then it's clumsy but should be allowed to run. By allowing a non-supermajority to crush a supermajority check, as in the so-called nuclear option, an important constitutional check on the presidential appointment power is lost.

If you want to fix the clumsy nature of the filibuster option, the right fix seems to me to change the rules so that judicial appointments explicitly require a supermajority, so that it's clear that an attempt by the minority party (whether Republican or Democratic, at any given time) to block an unacceptable candidate is a reasonable and appropriate action. Judicial appointments should not be merely "rubber stamped". If that were the point, the Senate would not have been involved in the first place.


The supermajority requirement of the Constitution is a way of implementing something that is very hard to change. At present, it seems to me that the Republicans, unable to modify the Constitution to achieve some of their desired social ends, are seeking to bypass the supermajority requirement in order to put activist judges on the bench who will achieve equivalent ends. They soothe their conscience by saying that the ends they seek to achieve are the undoing of changes they perceive other judges to have made. But those judges were installed under the same rules as they now face, including the availability of the filibuster. Perhaps at the time, they didn't think to use it. I'm not concerned with that. My position would not change if it was the Democrats in power and Republicans seeking to block. I'm a political independent, and my interest is in a system that is stable and representative of the people. I think the supermajority protection is the central issue here, and that it must not be undone for shortsighted political ends. The fact that the supermajority is implemented by so strange a mecahnism as the filibuster, and perhaps even that such protection was accidental in the original construction, does not change my view that it is necessary to the checks and balances of the Constitution that it be just as hard to change the Constitution as to change the people who interpret it. Otherwise, the supermajority protection to the Constitution itself has fallen. And that, not any particular set of specific rulings that the Republicans are short-sightedly seeking to correct at this moment, is the real road to chaos. Or so it seems to me.

[May 24, 2005] The “extraordinary circumstances” agreement is a disaster. Both parties should be ashamed.

A right to do something is a right to do something. Rights should not be made conditional on unenforceable subjective criteria. That's a recipe for turning every exercise of “due process” into a shouting match. If the Constitution were written that way, it would not be worth the parchment it was enscribed on.

There used to be a clear rule allowing the filibuster. Now there's a back room deal based on subjective criteria to maybe not use an available tool under various circumstances where it's applicable.

If the Democrats don't stand for due process, and are just cynically interested in the outcome that such process will buy them, then they aren't any better than the Republicans.

I think in any Constitutional dispute, anyone involved should do what is right not just for their own present concern, but for any possible future concerns no matter which side of the issue they find themselves on.

Copyright © 2009 by Kent M Pitman. All Rights Reserved.

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