The Filibuster is Dead. Long Live the Filibuster!

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Minority Leader Chuck Schumer has assembled enough members of his caucus that, should he choose to do so, the Democrats can now block the nomination of Judge Neil Gorsuch from proceeding to an up or down vote. Every indication is that the Majority Leader, Mitch McConnell, will respond with the so-called “nuclear option” to eliminate the filibuster for Supreme Court nominations so that the vote can proceed. While the legislative filibuster remains a longstanding bulwark of the rights of the minority, the judicial filibuster’s brief history is now drawing to an end.

Unlike the unprecedented judicial filibuster of a Supreme Court nomination with clear majority party support, the “nuclear option” rests on several precedents from as early as 1892 up to 2013 when the previous Majority Leader, Harry Reid, bent the rules of the Senate to their breaking point in order to abolish the filibuster for all other executive appointments by a simple majority. While this nakedly partisan power grab was an unfortunate turn of events then and is just as unfortunate now, in the words of Harry Reid, “This is the way it has to be.” The judicial filibuster has become a victim of its own success.

The Senate has many traditions, some dating back to the beginning of the Republic. In 1806, one of history’s greatest villains, Vice President Aaron Burr (yeah, that guy) pressed for a change to the Senate Rules which eliminated any procedure whatsoever for the body to bring debate to an end, and in 1837 the filibuster was used for the first time by the Whigs to delay a resolution favorable to President Andrew Jackson—and in those days, a filibuster could only delay, as members had to be physically present in order to continue, so practical considerations of sleep and bodily functions prevented a bill from being stalled indefinitely.

By the early 20th century, the demands and complexity of governing the vastly expanded bureaucratic state as well as the urgent necessity of supplying the military and enacting treaties following America’s entry into the First World War prompted the Senate (strenuously prodded by President Wilson) to adopt a new rule for cloture in 1917, which allowed a supermajority to bring debate to an end. In all that time, the filibuster had only ever been used for bills and resolutions. Most infamously in the filibuster’s long history, Southern Democrats Strom Thurmond and Robert Byrd used marathon filibusters in their futile and wrongheaded attempts to prolong institutional racism before the rules were modified in 1975 to allow Senators to filibuster without being physically present on the floor. The removal of this requirement predictably caused the number of filibusters to increase dramatically.

Meanwhile, Supreme Court justices were not subjected to public hearings until 1925, and even then, the questioning was limited to a few hours. It would be decades more until these hearings evolved into the embarrassing modern multi-day spectacle of eminent and respected jurists being lectured and scolded like misbehaving schoolchildren. In 1967, the opponents of racial equality came close mustering the necessary votes to filibuster the nomination of Thurgood Marshall, but were persuaded by President Johnson to abstain instead. Democrats later succeeded in filibustering the nomination of an appellate judge for the first time in 2003, forcing Miguel Estrada to withdraw his name from consideration. After that watershed was breached, the filibuster was used by both parties in an escalating procedural arms race which has now reached its inevitable conclusion.

The Senate has a long history of rejecting judicial nominations, dating back to the administration of President Washington, and rejected nominations were far more common in the 19th century than they are today. The judicial filibuster is just one way to reject a nominee—and a novel one at that. The party with the majority in the Senate exerts far greater influence the President’s choice of nominee, whereas the only time the filibuster has been used to block a Supreme Court nomination in the 228-year history of the Republic was the exceptional case of the promotion to Chief Justice of Abe Fortas who was tainted by scandal and broadly bipartisan opposition, so there is no data from which to draw any conclusions of its effectiveness. Besides, Senators also have other other tools to block objectionable judicial nominations. With or without the filibuster, the Senate will continue to be a necessary and appropriate check on the President’s awesome power of bestowing lifetime appointments to the judiciary.

More importantly, the acrimonious fight over the nomination of Judge Gorsuch is part of a much bigger movement to restore power to the states and to lessen the influence of the Federal Government. Republicans hold historic majorities at the state level which have not been seen since presidents still had beards, but these laboratories of democracy cannot function without a friendly Supreme Court which favors a narrower interpretation of federal power. Likewise, the legislative filibuster will continue to be a vital mechanism for smaller and more rural states to protect their interests from the tyranny of the majority.

The judicial filibuster was devised during the contentious and heated debates of the Civil Rights Era of the 1960’s and it will now go out in a blaze of glory for the first and last time. There can be no denying that the Supreme Court nomination process has become more politicized in recent years. Just ask Justice Anthony Kennedy, who is only sitting on the highest court in the land because of the vicious and mendacious attacks by the Democrats against Judge Bork. There is a certain irony that the last justice to be confirmed unanimously was the one before Justice Kennedy and whose vacant seat Judge Gorsuch has been nominated to fill. His name was Antonin Scalia.

The views expressed here are those of the author, and do not necessarily represent the views of CatholicVote.org

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About Author

Joshua Bowman joined in full communion with the Catholic Church in 2010 after many years in the spiritual wilderness. He recently moved back to his beloved native Virginia from Columbus, Ohio with his growing family and writes on religion, politics, history, and geographical curiosities.

19 Comments

  1. Political turnoff by the Congressional turmoil. I feel strongly that a SCOTUS nominee should display attributes that meet the expectations of the American public, as well as interpret the US Constitution. Not every candidate will meet that litmus test. Judge Gorsuch comes close. The political brouhaha makes this effort a complete mess. What is holding up the process? Two issues… Gorsuch’s support of Citizens United vs FEC and his apparent objection to Roe v Wade.

    A more important political debacle is the Republican Senate placing roadblocks to any and all SCOTUS nominees offered by President Obama. Judge Merrick Garland was an excellent choice for the open seat. McConnell, Grassley, Cornyn and their Republican cohorts on the Senate Judiciary Committee need to be taken to task for not even holding a hearing. Totally un-American!

  2. The lies and hypocrisy perpetrated by this website are exhausting and disgusting. You write:

    “The filibuster has never before been used against a Supreme Court nomination in the 228-year history of the Republic.”

    Yet in this article when Merrick Garland was nominated by President Obama, your organization claims the exact opposite: “So let’s dispense with this notion that the Senate is somehow obligated to confirm someone just because the President nominated someone. Especially a nominee coming from the only President to ever filibuster a Supreme Court nomination.”

    https://catholicvote.org/after-obama-nominates-someone-for-the-court-a-republican-senator-should-give-this-speech/

    So which is it? Which one of you is lying?

    Of course, this is completely false. There was no filibuster of Alito. “The Senate voted for cloture on the nomination 72-25.”

    https://en.wikipedia.org/wiki/Samuel_Alito_Supreme_Court_nomination#Filibuster

    When Obama nominated Sonya Sotomayor in 2009, Brian Burch, President of CatholicVote, called for a filibuster.

    “We call on you instead to display leadership, if the nominee merits it, in preparing for the use of the traditional filibuster, not intended to obstruct, together with moderate Democrats, so that the debate on the Senate floor is appropriately long and, therefore, suitably catalyzed to the American people.”

    Of course, the same letter also says, ” There has been much distraction in discussing whether the Republican Minority would or could muster a “Democratic filibuster,” i.e., a filibuster used to obstruct a Senate confirmation vote.”

    This is a laughable lie because there’s never been a filibuster, right?

    But your true colors come out in this sentence: “Republicans hold historic majorities at the state level which have not been seen since presidents still had beards, but these laboratories of democracy cannot function without a friendly Supreme Court which favors a narrower interpretation of federal power.”

    If you truly believe that the function of the Supreme Court is to smooth the path for Republican policies, then all the lies I’ve highlighted above make complete sense.

    This organization should be ashamed that it uses the name “Catholic.” The entire point of your organization seems to be to support the Republican Party.

    • So using the filibuster is wrong – unless there’s a Democrat President. Yeah, that sounds about right for this site. The staff of CatholicVote has no shame.

    • Ordinarily it is my personal policy to not to respond to the comments section, especially in instances such as yours where the commenter resorts to invective, ad hominem attacks, and other such rhetorical fallacies. Moreover, I have noticed that you are a frequent offender in this regard so I am loathe to give you the encouragement of a reply. I believe that any post I write should be carefully reasoned and be able to withstand criticism on the merits. If I have failed to do so, it is my own fault. However, your allegation of falsehood is a serious–and I argue erroneous–charge which requires disputation.


      Then-Senator Barack Obama voted against cloture (i.e., to sustain a filibuster) for the nomination of then-Judge Alito. That a motion for cloture even needed to be voted on was itself unprecedented. Although Justice Clarence Thomas was confirmed with less than 60 votes, there was no attempt to filibuster and no motion for cloture. If Chuck Schumer moves forward with the filibuster, it will be sustained under the current rules, which is also unprecedented. These are all factual statements which are easily verified.


      The quote you cite from Brian Burch refers to what he calls the “traditional” form of filibuster employed prior to 1975 which required those doing the filibustering to physically speak from the floor, and thus could not block, but only *delay* a vote. Many Supreme Court nominations have been voted down, but up to now, a filibuster (talking or otherwise) has never been used to block a nomination from reaching a straight up or down vote. Additionally, Merrick Garland was not the first justice to be ignored by the Senate. The practice was fairly common in the 19th century. A helpful table from the link below (also cited in the piece above) shows that on four previous occasions, the Senate declined to take any action on Supreme Court nominations and on another four occasions, the vote was postponed indefinitely.
      https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States


      John J. Crittenden – 1828 – J.Q. Adams – Postponed
      Roger B. Taney – 1835 – Jackson – Postponed
      John M. Read – 1845 – Tyler – No Action
      Edward A. Bradford – 1852 – Fillmore – No Action
      George E. Badger – 1853 – Fillmore – Postponed
      William C. Micou – 1853 – Fillmore – No Action
      George Henry Williams – 1873 – Grant – Postponed
      Thomas Stanley Matthews – 1881 – Hayes – No Action
      Merrick Garland – 2016 – Obama – No action


      The prudence of the using the filibuster or eliminating it are questions of opinion upon which reasonable people may disagree and the views attributed to Mr. Burch, Mr. Mercer, and myself are our own. If CatholicVote chooses to make an official statement, editorial position, or endorsement, the byline will indicate this. However, what is not debatable is whether Majority Leader Mitch McConnell has the power to abolish it. That point was already demonstrated conclusively by Harry Reid in 2013.


      As for the political advocacy of CatholicVote (which, as the name implies and as a registered 501(c)(4) non-profit, is the whole point of the organization), do you believe that Judge Merrick Garland would have been a better advocate of religious freedom than Judge Neil Gorsuch? As a Catholic organization devoted to enriching public discourse, religious freedom is the most central and important issue we can possibly advocate for. If the Democrats want to nominate justices who will unfailingly rule in favor of a broad understanding of religious freedom, then I personally might be willing to overlook many other shortcomings of the entire progressive program and its naked hostility towards the Catholic Church, but that is vanishingly unlikely.


      Judge Garland was presented as the most moderate and centrist nomination the left could possibly tolerate. However, in his view, religious freedom is fine if it’s restricted to what you do on Sunday, but every other day of the week, your rights are subservient to the will of the state:
      https://www.washingtonpost.com/news/acts-of-faith/wp/2016/03/16/merrick-garlands-record-on-religious-freedom-cases-including-the-contraception-case-now-before-the-supreme-court/


      On the other hand, Judge Neil Gorsuch ruled in favor of Hobby Lobby, because religious freedom is not just about what you do in church, but touches on many other questions about how we live our lives and fully participate in civil society:
      https://www.washingtonpost.com/politics/2017/live-updates/trump-white-house/neil-gorsuch-confirmation-hearings-updates-and-analysis-on-the-supreme-court-nominee/durbin-gorsuch-spar-over-hobby-lobby-ruling/


      The Catechism of the Catholic Church is clear on this point, that while there may be limits on religious freedom consistent with the natural law *and* the public good (N.B., not *or*), under no circumstances may the civil law coerce the individual to violate a well-formed conscience:
      http://www.vatican.va/archive/ccc_css/archive/catechism/p3s2c1a1.htm


      2106 “Nobody may be forced to act against his convictions, nor is anyone to be restrained from acting in accordance with his conscience in religious matters in private or in public, alone or in association with others, within due limits.” This right is based on the very nature of the human person, whose dignity enables him freely to assent to the divine truth which transcends the temporal order. For this reason it “continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it.”


      and also


      2108 The right to religious liberty is neither a moral license to adhere to error, nor a supposed right to error, but rather a natural right of the human person to civil liberty, i.e., immunity, within just limits, from external constraint in religious matters by political authorities. This natural right ought to be acknowledged in the juridical order of society in such a way that it constitutes a civil right.


      2109 The right to religious liberty can of itself be neither unlimited nor limited only by a “public order” conceived in a positivist or naturalist manner. The “due limits” which are inherent in it must be determined for each social situation by political prudence, according to the requirements of the common good, and ratified by the civil authority in accordance with “legal principles which are in conformity with the objective moral order.”


      If you don’t like the implications of these statements, then I suggest you take it up with the Pope. Judge Gorsuch seems to understand the importance of these passages better than you do, and he’s not even Catholic.


      In any case, it’s a lovely day where I am and I hope it is for you too. If you are exhausted and disgusted by this site, for the good of your soul, I suggest you go outside and get some sunshine and fresh air. There is more to life than the comments section of a blog.

      • Yes, obviously because someone has different opinions than you, they obviously are not a good Catholic.

        Your claim that a cloture vote on Alito is unprecedented is…another lie.

        https://www.washingtonpost.com/news/fact-checker/wp/2017/02/02/senate-democrats-misleading-language-on-a-60-vote-standard-for-supremer-court-nominees/

        You can parse the language all you want about a traditional filibuster. Of course, there’s no evidence that cloture is not used to end traditional filibusters.

        https://www.senate.gov/CRSpubs/83d4b792-d34b-4215-be6d-4a3c4e976d2b.pdf

        How you have assumed that all the Republicans your organization called on to filibuster would vote “Yes” on a cloture vote is beyond me. Have you polled them? Surveyed? Asked anyone? Or are we just to believe you?

        As for matters of religious freedom, if you truly believe that “Nobody may be forced to act against his convictions, nor is anyone to be restrained from acting in accordance with his conscience in religious matters in private or in public, alone or in association with others, within due limits,” then obviously you wouldn’t be fighting against non-Catholics living according to their own religious beliefs.

        But we have a long historical record of you fighting exactly that battle. Whether you like it or not, gay marriage is a part of Episcopalian canon law, yet you’re fine with the government banning it. But please, by all means, continue to call me names and impeach my religiosity.

        • My apologies, I forgot about Justice Rehnquist. As for the filibuster of Justice Fortas, that was a special case, because that vote was for promoting him from Associate Justice to Chief Justice and the opposition was broadly bipartisan. Additionally, as I already noted, prior to 1975, the filibuster could only delay, not permanently block action, so between 1917 and 1975, cloture was comparatively rarely invoked. President Johnson withdrew the nomination rather than persist with further airing of Fortas’ scandals and coziness with the White House before eventually getting to vote which he might have lost anyway. I have updated the original post to be more specific that the use of the filibuster to block a nomination with clear majority party support is unprecedented. I regret the error.

          • You can attack me, or my argument. Your choice.

            I’m open to any explanation as to what parts of Catholic canon law the government can ban. If the answer is none, then I’m open to explanations as to why the canon law of other faiths are open to banning.

          • Why would citing aberrant sexual behavior be considered an ‘attack’, Rob? Homosexuality, and all other aberrant sexual behaviors embraced by LBTGQ are, by definition, aberrant- see nature if you are still confused.

            Who is advocating for banning any behaviors per Catholic Canon Law- except for those behaviors that are in contradiction with Natural Law, and the Laws of Nature- behaviors that which lead to the biological unfitness of our species?

            That Catholic theology, and philosophy, is entirely consistent with the Laws of Nature is no shear accident.

            If you are still confused, see God- He will make all things straight for you.

      • Mr. Bowman: I am afraid your argument doesn’t make a lot of sense. As the original poster noted, there was no filibuster of Justice Alito. There was a cloture vote to end discussion.

        Had the Republicans filibustered Sotomayor in 2009, there is no reason to think that the Democratic-majority Senate would have not called for a cloture vote. Are we truly to believe that all Republicans would have supported that cloture vote?

        Burch’s co-signed letter itself calls to create an intentional delay. The only way there would be any difference would be if Republicans voted yes on cloture. As a cloture vote can be called at any time during a filibuster (and then a number of rules are followed), your assumption is at odds with the very core of the letter written.

        When Garland was nominated, your website did not take the position that the Senate may not consider any nominees any time. Your website wrote specifically:

        “Our position is simple: the GOP should follow the tradition of the Senate, and the position taken by Democratic Senators Schumer and Joe Biden: No Supreme Court confirmations during a presidential election year.

        After all, it was Joe Biden who said in 1992:

        ‘The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.'”

        Yet the Senate didn’t schedule hearings on the nomination after the campaign season was over. By the very line of demarcation set by your organization, the “rules” were not followed.

        https://catholicvote.org/petition-tell-the-senate-no-hearings-no-votes/

        Your complaints fall on deaf ears for this very reason.

  3. Mr. Bowman:

    Upon Merrick Garland’s nomination, your organization wrote the following:

    “Our position is simple: the GOP should follow the tradition of the Senate, and the position taken by Democratic Senators Schumer and Joe Biden: No Supreme Court confirmations during a presidential election year.

    After all, it was Joe Biden who said in 1992:

    ‘The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.’”

    https://catholicvote.org/petition-tell-the-senate-no-hearings-no-votes/

    In your post, you spend an awful lot of time telling us that Democrats continually flaunt the rules. May I ask: where was your organization’s response, or your own, when Republicans ignored the rules regarding Merrick Garland? After all, unless I missed it, no confirmation hearings were scheduled in November or December of 2016.

  4. Jason Turner on

    The author is selling us a false bill of goods. The letter from Brian Burch regarding the Sotomayor filibuster calls for a cloture-proof filibuster bloc.

    “We request that you will lead 40 or more Senators to participate in a great debate that highlights all the issues that come to the fore with a Supreme Court nomination.”

    Are we to believe that the 40 or more Senators participating in this great debate will actually vote to end the debate they are seeking to have?

  5. Having read the letter from Mr. Burch, I’m confused by what you wrote, Mr. Bowman. If you believe that the cloture vote for Alito was unprecedented, and therefore somehow wrong, why was Mr. Burch calling for 40 or more Senators? That seems like a very specific number. Is it just coincidental that 40 is the exact threshold for cloture?

    You’re not being truthful with us, and I find that to be very disturbing. Your organization’s actions regarding Sotomayor speak for themselves. The filibuster is right, as long as it serves your own political purposes.

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