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November 21, 2013


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Is the filibuster in the Constitution? How does messing with the filibuster mess with the basic Constitutional framework? You still have a majority of the elected Senate approving a nominee of the elected President. The balance of powers between branches is intact.

The fact of the matter is that an extreme number of nominees have been blocked by a minority of Senators. That is not what the Constitution intended. You should not need to have 60 Senators to govern.


"the Constitution is violated when “a particular group has been . . . denied its chance to effectively influence the political process.” "

Why isn't the "chance to effectively influence the political process" the chance that parties and people have during elections? Admittedly, our election process in the US is pretty bad, but few, if any, other mature democracies have anything like the filibuster, and they seem to work no worse,and arguably better, than the US.

(And, of course, Pep is right that the filibuster isn't part of the "constitutional framework". Even if it were, it would be a (further) mark against the constitution, not one in favor of it.)

David Orentlicher

The constitutional text does not answer the filibuster question. According to Article I, Section 5, “Each House [of Congress] may determine the Rules of its Proceedings.” If the Senate wants to employ a filibuster, it may.

My point about the constitutional framework is that the drafters gave us a system of checks and balances to sort out the questions for which text is indeterminate. They expected the different branches to compete for power when the allocation of power was unclear. They did not want the different branches deferring to each other, as the Senate did today with respect to the executive branch (which they did because we now have a separation of parties rather than a separation of powers, as observed by Levinson, Pildes and others).

If the Senate wants to eliminate the filibuster, it makes much more sense from a separation of powers perspective to do so for legislative matters rather than for its advice and consent role. Today, the Senate did the reverse.

The problem with relying solely on elections to give people a chance to influence the political process is that we have winner-take-all elections and fixed terms. And of course, elections have not prevented majorities from disempowering minorities historically.


David - I certainly think it is possible for the Senate of the President's party to reject a nominee of the President's party. For example, I think a Democratic Senate would have rejected Larry Summers to the Fed, and a Republican Senate would have rejected Harriet Myers to SCOTUS. It is not like there is no advise and consent role merely because the minority party who lost both the Presidency and most of the Senate does not get to veto every candidate it does not like.


how can eliminating the filibuster for presidential nominees be considered a constitutionally significant event? the filibuster is not in the constitution. rather, the senate is allowed to choose its own rules. if the senate exercises its constitutional right to choose its own rules by requiring 51 votes to confirm a nominee rather than 60, i have trouble seeing how that 9 vote difference makes a constitutional difference or even significantly alters the role of the branches of government. This is especially so since a) until the filibuster of abe fortas in 1968, the norm was to confirm nominees by a simple majority vote, and b) use of supermajority rules to block presidential action across a range of areas (not just judicial nominees) has arguably weakened the senate by encouraging presidents to bypass congress.

Bill Turnier

Several years ago James Fallows wrote an article in which he discussed certain aspects of our society. He noted that although many admired most features of our government and human rights, he never encountered a single soul who thought our Senate was worthy of being copied and embraced by their society. Does that surprise anybody?

David Orentlicher

The Senate has its faults, to be sure, but it is not difficult to find examples for which the Senate has acted much more reasonably than the House. Minorities can obstruct, but on balance, I think government works better when everyone has a voice than when the majority can ignore the minority, as can happen much more easily in the House than in the Senate.

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The Senate has its faults, to be sure, but it is not difficult to find examples for which the Senate has acted much more reasonably than the House.

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