When we think of the filibuster, we likely alternatively picture a glorious stand against the tyranny of the majority, or a waste of time created by obstructionist opposition to progress. Obviously, which vision of the filibuster we select depends largely on the representative delivering the speech, and our own political preferences. Alternatively bemoaning and praising the filibuster for its bureaucratic and procedural nature, we rarely question its relationship to democracy.
I want to suggest a different understanding of the filibuster in conjunction with the confirmation of federal judges. By examining the process of confirmation of justices and the radical change this process underwent in recent years, I will show that the filibuster is a democratic process that prevents polarization of the courts.
Throughout the course of my analysis I will not use Schumpeter’s “thin” conception of democracy that relies primarily on the electoral process. Instead I chose a Dahlian definition of democracy that puts the responsiveness of a government to its citizens at the forefront. My definition falls on the liberal side of Diamond’s spectrum, which hinges on freedom, fairness, inclusiveness, and equal rights within the polity.
The death of the filibuster has implications for a wide variety of nominations but I chose to focus specifically on the potential for polarization on the judges’ bench.
I contend that the filibuster provided a mechanism for the depolarization of the US judicial system that protected democratic approval of the law of the land. When the Democratic Party removed the ability to filibuster federal judge confirmations in 2013 and allowed the majority party to confirm judges more easily, it laid out a path towards judicial polarization and politicization of democratic law. This phenomenon not only adds to the political polarization already inherent in US politics today, but also poses a new threat to democracy by attacking the legitimacy of democratic lawmaking.
- What exactly is the filibuster, and what changed in 2013?
The filibuster is one of the most unusual features of US democracy, and has a long and illustrious history.The filibuster is a feature that allowed a minority party to debate an issue for an infinite time limit, essentially stalling a vote and delaying action.
A motion to end a filibuster previously required a 3/5 majority in the senate, or 60 out of 100 senators. In 2013, the Democratic senate passed legislation that removed the need for a super majority in the case of presidential nominations.This allowed for a simple majority of senators to vote to end the filibuster and move into voting on the nomination.
This fundamentally altered the procedural style of the confirmation process by allowing a majority party to overrule the filibuster for all nominations except Supreme Court nominations. In 2013, this was termed the “nuclear option”.
- What have been the effects of ending the filibuster?
In the immediate aftermath of the 2013 rule change, the Democrats were able to confirm a number of court nominations by removing the need for supermajority to end the filibuster. Enacting the nuclear option enabled the confirmation of justices previously blocked by the Republican minority through the filibuster. Analogous processes are now being used by the Trump administration to force through their own nominations, both for judges and cabinet positions.
Both the Obama and Trump nominations for judicial positions would likely have been filibustered, forcing more moderate confirmations. This can be seen in the immediate confirmation of Patricia Millett to the D.C. Circuit Court of Appeals in 2013, in the aftermath of the rule change.
Under the current administration, the filibuster became the site of controversy in an unprecedented conflict in the nomination of Neil Gorsuch to the Supreme Court. In 2013, the Democratic vote to end the filibuster had applied only to lower court nominations. However, the Republican-controlled senate used an analogous rule change to confirm Gorsuch, removing the need for compromise in much the same way that the Democrats had done before.
The result of these failures to compromise, procedurally permissible by ending the filibuster? Politically polarized judicial benches, such as can be seen in this decision of the DC. Circuit Court of Appeals in July of this past summer.
- The filibuster and courts sound important, but how do they impact democracy?
I hope to have convinced you that ending the filibuster paved the path for the confirmation of more partisan justices who would not have surpassed the 60 votes, 2/3rd supermajority to avoid a filibuster. The death of the filibuster in the case of justice nominations culminates a decades long process of increasing partisanship and polarization over the judicial branch.
The threat posed by the death of the filibuster for judicial nominations (both lower courts, and now in the Supreme Court) can be described as “constitutional retrogression,” as defined by Huq and Ginsberg. These authors identify three dimensions of democracy whose simultaneous decline signifies a threat to democracy. These three dimensions are i) competitive elections, ii) liberal rights to speech and association, and iii) the adjudicative and administrative rule of law. In my opinion, the end of the filibuster leads to erosion of the rule of law.
We must do away with the image of perfect court that exists completely separate from the political world. The reality is that the judges who pass down rulings on cases are appointed by partisan figures, and thus the courts are necessarily partisan and politicized as well. When the filibuster is prohibited, judges whose views lie at the ends of the political spectrum may be confirmed far more easily.
In my estimation, the polarization and politicization of the courts leads to a lack of integrity in the rule of law, and undermines the stability of legal institutions. Both integrity and stability are components of the rule of law that Huq and Ginsberg view as central to democratic performance. When the courts are filled with partisan justices who interpret the law in different ways, the law cannot provide integrity and stability due in part to a lack of predictability.
- So democracy is toast, right?
No, not quite. Assuming that I’m right, and that the end of the filibuster causes the rule of law to lose its significance, we still need to observe erosion in two other categories to deem that the US is experiencing constitutional retrogression. However, if we do observe the decline of competitive elections and liberal rights to speech and association, combined with the end of the filibuster and subsequent erosion of the rule of law…we could claim the viable presence of constitutional retrogression.
*Photo by Duncan Lock, “US Supreme Court Building” (Wikimedia Commons), Creative Commons Zero license.