Erwin Chemerinsky on Filibusters: Then and Now
Erwin Chemerinsky (together with William and Mary law professor Michael Gerhardt) has an op-ed in yesterday’s L.A. Times opposing the “nuclear option” to end judicial filibusters. A review of Chemerinsky’s record reveals that Chemerinsky’s view of filibusters has radically changed since 1997, when Bill Clinton was President.
Typical of recent liberal op-eds on this subject, yesterday’s piece is an homage to the filibuster as a time-honored tradition in the Senate:
Filibusters are possible because of a parliamentary rule that allows a minority of senators to keep debate open on any subject; the votes of at least 60 senators are needed to end debate. This reflects the Senate’s historic commitments to protecting minority viewpoints and encouraging consensus. Without the filibuster, 51 senators reflecting a minority of the population could pass anything and not bother to consult with the remaining senators, who represent a majority of the population. The filibuster is a key check in our system of checks and balances.
The filibuster is as old as the Senate itself, as Sen. Bill Frist (R-Tenn.) recently noted.
. . . .
The president has earned the privilege of nominating federal judges. But the Republicans’ triumph on Nov. 2 does not entitle them to ignore Senate rules or to eliminate a “tradition,” which Frist describes as uniquely responsible for making the Senate “the world’s greatest deliberative body.”
But Chemerinsky, together with Loyola law school professor Catherine Fisk, expressed quite a different sentiment in a 1997 law review article (accessible in its entirety in .pdf form here). That article argued that the filibuster has evolved over time from its original incarnation into a “modern filibuster” — one which does not hold up other Senate business, and has fewer political consequences for those who practice it. The article declared:
The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it. (p. 184)
In his L.A. Times op-ed, Chemerinsky decries Republican efforts to change the filibuster rule for judicial nominations. He argues that the Senate should follow its “long-established rules for changing Senate procedure” — and that any attempt to change those rules would not be based on constitutional principle:
The GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate. Not only do the Republicans hope to do it without following the long-established rules for changing Senate procedure but, if they’re successful, they would eliminate a key check, guaranteeing their party’s absolute control over Supreme Court appointments.
. . . .
GOP leaders lack the two-thirds vote needed to change the rules and end filibusters of judicial nominations. Their only chance is called the “nuclear option.” It entails procedural moves culminating in a ruling by the Senate’s presiding officer — Vice President Dick Cheney — declaring filibusters of judicial nominations unconstitutional.
. . . .
The major problem with the nuclear option is that it is a cynical exercise of raw power and not based on constitutional principle or precedent.
This is stunning hypocrisy, in light of Chemerinsky’s law review article, in which Chemerinsky explicitly encouraged the Senate to embrace a version of the “nuclear option.” The article urged the Senate to change Rule XXII, the rule requiring a two-thirds vote to change the rules for ending filibusters. Chemerinsky argued that Rule XXII is unconstitutional, because it embedded the filibuster in Senate procedure from one Senate to the next:
[E]ntrenchment of the filibuster violates a fundamental constitutional principle: One legislature cannot bind subsequent legislatures. (p. 247.)
. . . .
Therefore, Senate Rule XXII is unconstitutional in requiring a two-thirds vote in order to change the Senate’s rules. Declaring this rule unconstitutional would mean that a majority of the Senate could abolish or reform the filibuster. Ideally, the Senate would recognize this violation and revise its own rules to eliminate the requirement for a supermajority. (p. 253.)
Clearly, Chemerinsky’s position has, shall we say, “evolved” since 1997. I wonder what provoked this radical change in position regarding filibusters, and the desirability of changing the rule that entrenches them?
Do you think it has anything to do with the fact that Republican George W. Bush is now the President?
Chemerinsky’s Changed Tune on Filibusters
In yesterday’s L.A. Times, law professors Erwin Chemerinsky (Duke) and Michael Gerhardt (William & Mary) argue against Republican proposals to…
Trackback by The Volokh Conspiracy — 12/6/2004 @ 7:33 am
2 points…
1) The big bad ‘ol “nuclear option” has already been uncorked … by the Dems. If filibustering to keep nominees from even reaching the floor for a vote isn’t ‘nuclear,’ then no procedural changes the Republicans may suggest will merit the term.
2) If the shoe was on the other foot, Erwin Chimperinsky would have his B.S. about how the Republicans were trashing the hallowed halls of the Senate by their obstinacy, and thwarting the very spirit of democracy by standing as a few bitter souls against the reasoned (Democrat) majority of the Senate.
I’ve heard Chimperinsky many times on Hugh Hewitt’s show. He’s a total liberal shill.
Comment by clark smith — 12/6/2004 @ 7:37 am
Volokh Conspiracy Really Chapping My Hide
Reading the Volokh Conspiracy lately has been an exercise in anger management, but it’s one of the few (if not the only) places on my blogroll where I can get a conservative viewpoint. Well, here’s today’s dose. Chemerinsky’s Changed Tune on Filibuster…
Trackback by McCord — 12/6/2004 @ 9:14 am
I can’t access the complete article, but the abstract (and your excerpts) suggests Chemerinsky is drawing some sort of important distinction between the modern “stealth” filibuster (which does not require senators to hold the floor) and its hoarier counterpart (which does).
Is that not the case?
Comment by Tadlow Windsor II — 12/6/2004 @ 9:42 am
Man Bites Steak
Patterico catches the Dog Trainer actually doing its job.
UP
Trackback by damnum absque injuria — 12/6/2004 @ 10:15 am
The introduction section of the article never draws a distinction between the “stealth” and other fillibusters, though I see what Tadlow means about the abstract. Chem certainly draws a distinction between the way the fillibuster is used now versus in the past, but I don’t get the sense that it is acceptable and unacceptable procedure he complains about; it is the partisan purpose, increased use, legacy of blocking civil rights legislation, and requiring the “super majority” that are the problems. Patterico is spot on.
Comment by Matto Ichiban — 12/6/2004 @ 10:49 am
Tadlow,
Chemerinsky does indeed draw that distinction in the law review article, only insofar as he argues that the “modern filibuster” is not a longstanding tradition.
But that distinction does not cut against my charge of hypocrisy; it supports it.
Chemerinsky praises the filibuster in his op-ed as a “key check” that represents “historic commitments” and “tradition” that is “as old as the Senate itself” — without telling readers that he believes the filibuster has evolved into a new animal, one which is not firmly rooted in tradition.
Much worse, he attacks the nuclear option as unrooted from constitutional principle, when in his law review article he advocated the Senate’s pursuit of a nuclear option, as a constitutional imperative. This is the true hypocrisy of his op-ed, as compared with the law review article.
You might try reading the op-ed and then at least skimming the law review article — especially the parts around the page numbers I supply in the post.
Comment by Patterico — 12/6/2004 @ 11:07 am
I have long wished that, every time the democrats used a threat of fillibuster to stop a bill they didn’t like the republicans would have made them do it instead of giving them a cost-free victory. Remember how democrats shut down the government, then blamed Gingrich for it? To democrats, politics is a full contact sport. Republicans sometimes treat it like flag football.
Comment by Walter E. Wallis — 12/6/2004 @ 12:18 pm
I don’t have anything to add really. Great post!
Comment by Iconic Midwesterner — 12/6/2004 @ 12:28 pm
Chemerinsky caught red handed (again)
Patterico nails down another example of legal double-speak by noted law professor Ewrin Chemerinsky in furtherance of partisan gains. Incidentally, Catherine Fisk, the Loyola Law Professor who co-authored the 1997 law review article on Senate filibuste…
Trackback by Calblog — 12/6/2004 @ 1:50 pm
Prof. Chemerinsky’s crocodile tears for “tradition” are particularly galling coming from a leading proponent of a “living” Constitution.
Your best work yet, Patterico. We are not worthy. It would be a beautiful irony if your efforts resulted in Prof. Chemerinsky’s original and interesting 1997 arguments against the stealth filibuster again see the light of day…
Comment by tom van dyke — 12/6/2004 @ 2:48 pm
Trojan Huddle: Good Old-Fashioned Link-Whoring
It’s been awhile since I did a Trojan Huddle–highlighting 11 of the interesting things around the blog-o-sphere of the day. But in light of other people’s pay-to-play link-whoring,* I figured I should do some clean old-fashioned link-ho’ing of my own:…
Trackback by BoiFromTroy — 12/6/2004 @ 4:00 pm
‘Chemerinsky praises the filibuster in his op-ed as a “key check” that represents “historic commitments” and “tradition” that is “as old as the Senate itself” — without telling readers that he believes the filibuster has evolved into a new animal, one which is not firmly rooted in tradition.’
But is the GOP going to destroy the new animal or the whole thing?
Comment by actus — 12/6/2004 @ 5:27 pm
In theory, the “whole thing” as applied to judicial nominees. In practice, only the new animal — because that’s the one the Democrats are using.
But the bigger point is that he has actually supported a version of the nuclear option — and the same two-thirds rule he praises in the op-ed, he has denounced as unconstitutional in his law review article. Hard to defend that.
Comment by Patterico — 12/6/2004 @ 5:57 pm
The only defense would be that unconstitutional doesn’t mean that it shouldn’t be done.
Comment by actus — 12/6/2004 @ 7:18 pm
Actually, Chemerinsky has an out: All he needs to do is explain why the current 60% vote is constitutional while the 67% rule change requirement is not. Should be no problem for a liberal professor.
Comment by Kevin Murphy — 12/6/2004 @ 8:16 pm
Actus, to the extent I can understand your comment, it appears to reveal that you haven’t read his article. I suggest you read it before you defend it. If you’re pressed for time, do what I suggested with Tadlow: read the portions around the quotes I cited.
Comment by Patterico — 12/6/2004 @ 10:00 pm
I read your quotes. It does appear as if its still unconstitutional. I guess the only defence would be if he thought that it wasn’t so bad, which is different than the constitutional question.
Comment by actus — 12/7/2004 @ 6:27 am
Keep digging.
Comment by Patterico — 12/7/2004 @ 6:32 am
Keep digging where? do your quotes support more than i have said?
Comment by actus — 12/7/2004 @ 3:01 pm
I had this idea that when Chemerinsky said:
that he thought that the Senate should recognize the violation [of the Constitution by Rule XXII] and revise its own rules to eliminate the requirement for a supermajority.
If the “it” in your posts refers to something else, feel free to make that clear — but do me a favor and read the article first before you waste any more of my time, mmmkay?
[All: am I doing what’s called “feeding the trolls” by talking to this guy? It seems like he’s being *deliberately* obtuse here . . .]
Comment by Patterico — 12/7/2004 @ 4:29 pm
Filibusterin’ Fun
An article in the LA Times, Senate’s ‘Nuclear Option’, presents the case against changing the filibuster rules in the Senate. The filibuster is a tactic for stalling on a bill or, in recent cases, a judicial appointment. In theory, opponents of the …
Trackback by Completely Foolproof — 12/7/2004 @ 6:01 pm
“Without the filibuster, 51 senators reflecting a minority of the population could pass anything and not bother to consult with the remaining senators, who represent a majority of the population. The filibuster is a key check in our system of checks and balances.” Gee. I thought the “checks and balances” to deal with that kind of situation are (1) the requirement of approval also by the House of Representatives to enact a bill and (2) the presidential veto. Silly me……..
Comment by ELC — 12/8/2004 @ 6:49 am