//  4/10/17  //  Commentary

Last Thursday, the Senate repealed the filibuster for Supreme Court appointments, paving the way for Justice Neil Gorsuch’s confirmation on Friday by a nearly party-line majority vote.  While these developments are significant in their own right, the filibuster repeal itself may be less important than some deeper trends it reflects.

Why does the filibuster itself matter?  By requiring a 60-vote supermajority for the Senate to take action, the filibuster rule enables the minority party to obstruct action favored by the majority.  The rule is deeply undemocratic—as indeed is the Senate itself.  (Because each state gets two Senators, today Wyoming (population 586,000) receives the same representation as California (population 39 million).)

Today, however, Republicans control the White House as well as majorities in both the House and Senate.  As a result, the Senate filibuster is the only way for Democrats (who after all won the popular vote in the presidential election) to assert their legislative preferences.  An irony of our moment is thus that an undemocratic feature of an undemocratic institution is protecting important majority preferences of the national electorate.

Nevertheless, the filibuster is undergoing steady erosion.  Senate Republicans altered the filibuster rule by exercising the “nuclear option”—voting by a bare majority to alter a rule requiring a supermajority.  They were able to do so because the Senate holds constitutional authority to “determine the Rules of its Proceedings,” and that authority must be ongoing.  Otherwise, temporary majorities could entrench their power with permanent supermajority rules.

At any rate, Senate Democrats paved the way for this change by themselves nuking the filibuster for executive appointments and lower-court nominations when they had control during the Obama presidency.  Now the legislative filibuster likely hangs by a thread.  It will remain in place only so long as its existence is politically convenient for the majority.

What should we make of these developments?  In the short run, the implications are mixed.  We have gotten a Supreme Court justice who is unarguably well-qualified.  We have also gotten a set of cabinet officers who are. . . well, I’ll let you finish the sentence.

In the long run, the filibuster’s slow death may not be a bad thing.  By obstructing good changes as well as bad, the filibuster has made it harder to govern and thus clouded political accountability for unaddressed problems.  (Recall that the Affordable Care Act might have looked quite different without the Senate filibuster.)  At any rate, history suggests the filibuster’s demise was inevitable, as Josh Chafetz explains here.

All that said, though, to my mind the filibuster’s abolition is less troubling than three deeper trends that Gorsuch’s confirmation process highlighted.

One is the ongoing politicization of the Supreme Court.

We all know that Presidents from different parties nominate justices with different judicial philosophies.  We also all know that those philosophies yield different outcomes on issues of great importance to the electorate.

Nevertheless, the Supreme Court’s legitimacy depends on the public perceiving it as a court—as a body, that is, whose members reach conclusions based on good-faith legal reasoning rather than raw partisan preference.

This public understanding is already at grave risk, and the problem may now get worse.  To be blunt, routinely confirming judges and justices by party-line majority votes will risk giving credence to President Trump’s denigration of courts as “so political” and thus only “so-called” judges.

In a case of real conflict between courts and the executive branch, the implications of corroding judicial legitimacy in this way could be truly dangerous.

A second related trend is the ongoing erosion of norms and conventions of good governance.  Regardless of the filibuster, in my view, the correct norm for judicial and executive appointments was to give substantial deference to the sitting President’s choices.  We followed that norm in the recent past, but it is now dead.  It was killed by a process of partisan tit-for-tat escalation over decades, culminating in Thursday’s filibuster repeal.

This example, importantly, is not isolated.  Why do so many basic separation-of-powers questions, unanswered from the beginning of the Republic, seem to be coming up now?  (Some examples include questions about the Emoluments Clause, recess appointments, recognition power, treaty confirmation, senatorial obligation to consider nominees, and faithful execution.)  Surely part of the explanation is that we are shredding buffers of convention that previously spared us from reaching bare questions of legality.

We are likely to end up—indeed we already have ended up—with a system of inter-branch relations that is more conflictual and tactical, characterized by bare-knuckle pursuit of partisan advantage rather than disinterested advancement of the national interest.  Partisan animosity is incinerating the furniture of our constitutional home.  The bare structure left in place may prove hardy and durable (let’s hope), but it will be a less comfortable place to live.

A last related problem is that even some important legal norms ultimately require political enforcement.  Courts have treated key separation-of-powers issues, including questions about war powers, foreign affairs, and (I have argued) law enforcement, as non-justiciable “political questions.”  Some issues, though legal in character, are simply too momentous or multi-faceted to be appropriate for judicial resolution in a democracy.

The most important issue in this category is war powers.  On Thursday, just as the filibuster was abolished for Justice Gorsuch, President Trump ordered military strikes against a sovereign nation on his own authority.

Presidents (in my view) hold considerable authority to launch limited military operations without specific congressional approval.  But this power is not boundless and it is subject to congressional override.  Courts nevertheless are unlikely to enforce legal limits on military action.  Despite the deep partisan animosity evident in the filibuster repeal, we must hope our political system retains some capacity to do so.

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

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