Separation of Powers and the Filibuster

I go back and forth on what I think about the propriety of the filibuster for legislative purposes, although I’m inclined towards the view that the filibuster is on the whole a good thing under those circumstances.

The announcement by Sen. Ben Nelson that he would not only oppose but filibuster Obama’s nominee for the National Labor Relations Board, however, provides an opportunity to discuss an area where I think the filibuster is not only inappropriate but also undermines the spirit, though perhaps not the letter, of the Constitution.

In circumstances such as executive and judicial nominations, the filibuster is to my mind utterly inappropriate and even outright toxic.  The power to nominate and appoint federal executive and judicial officers is Constitutionally vested in the President under Article II, although certain appointments are to be made with the “advice and consent” of the Senate. 

That this power should rest primarily with the President makes much sense, as well.  As Hamilton wrote in Federalist 76:

I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.

Indeed, the Founders specifically contemplated that “advice and consent” would only require a majority, rather than a super-majority, from the Senate.  Hamilton again:

A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance.

(Emphasis added).

The proposition that a supermajority is not be required finds further support in the fact that the Constitution does not require approval of a nomination from both houses of Congress, but rather only the supposedly more deliberate and less-subject-to-mob-rule Senate.  Imposition of a super-majority requirement on appointments in the Senate undermines this spirit.

Indeed, the problems of a super-majority requirement for nominations become even more apparent when you consider its effects.  Despite our system’s use of “checks and balances,” there can be little dispute as to the primary Constitutional role of each branch.  The Executive is responsible for the execution of laws that Congress has passed; the judiciary is charged with deciding “cases and controversies”; and the Congress is charged with legislation.

However, the Executive cannot competently perform its duties if the Senate refuses to confirm a sufficient number of officers to do so.  Nor can the judiciary competently perform its duties if it lacks a sufficient number of judges to handle the cases and controversies that come before it.  The purpose of requiring the Senate’s advice and consent is to place a “check” on the Executive’s authority, to act as a safeguard against excessive cronyism or appointments “from a view to popularity,” in Hamilton’s words.  It is explicitly not intended to permit the Senate to act as a complete block to the President’s ability to “produce a good administration,” to say nothing about the ability of a single Senator to so act.

Yet this is precisely what has happened over the last number of years.  It is not enough that the minority party oppose a particular nomination for ideological reasons, which I think is perfectly fair and acceptable.  The minority party instead also finds it appropriate to deploy the filibuster for such nominations.  The result?  Over 100 judicial vacancies in federal courts, including over 80 at the District Court level.  This amounts to approximately 1/8 of the judiciary.

And the problem is getting worse despite the huge majority the Democrats enjoyed in the Senate over the last year – during the previous Congress, there were only slightly more than half that number of vacancies, though still far too many.  Moreover, over 177 of President Obama’s nominations remained unconfirmed as of last month, thanks to a combination of threatened filibusters and, especially, holds.  By comparison, at a similar point in the Bush Administration, there were 70 nominees still awaiting appointment, which was itself far too many.

In principle, I don’t think there is much wrong with the Senate adopting rules, such as the filibuster, that have the effect of making legislation more difficult to pass.  Those rules restrain only the Senate’s performance of its own constitutional duties.   But when those rules are used in situations where they impede the ability of coequal branches to perform their Constitutional duties, in the process appropriating power beyond  the limited “checks” the Constitution provides the Senate over such nominations, the filibuster directly undermines the Constitution.

Truth be told, the Republicans were absolutely right to seek the “nuclear option” in 2005 over the issue of Democratic opposition to Bush judicial appointments.  If anything, the “nuclear option” would not have gone far enough since it did not address the issue of legislative holds.  I have still not forgiven the Democrats for their behavior in that instance.  By the same token, however, two wrongs don’t make a right, and the behavior of Senators using or threatening the filibuster and/or holds to block appointments appropriates power to themselves to which they are not entitled under the spirit of the Constitution.

None of this is to comment on the reasons for individual Senator to oppose a particular nomination – a Senator should be free to determine his or her own criteria for doing so.  Instead, this is only to say that the Senate should not be able to undermine the ability of coequal branches of government to carry out their Constitutional functions by way of an internal procedural rule that is not only extraconstitutional but also doesn’t even carry the authority of a duly enacted law.

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13 thoughts on “Separation of Powers and the Filibuster

  1. Sarah Palin!

    Seriously. One of the main defenses given regarding her resignation from Governor is that she kept having FOIA requests and Ethics Complaints and whatnot and she couldn’t afford to remain in office and so she left for the good of Alaska and whathaveyou, right?

    Why wouldn’t that be a good tactic here?

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      • Pardon. In the Sarah Palin “funk dat” thread, in response to the argument about Sarah Palin abandoning her post, the defense of Sarah Palin was given that she…

        Here. Let me quote Art Deco:
        She and her husband were facing $500,000 in legal bills from defending themselves against bogus ethics complaints, one of which was filed in the name of a character on East Enders. Efforts by supporters to set up a legal defense fund for her were met with…another ethics complaint. She was very explicit about this motivation for leaving office; the book and the speaking fees are meant to pay her lawyers.

        This seems like a *SPECTACULAR* tactic to use against Ben Nelson. What he’s doing is so obviously shady, surely the stuff he keeps hidden is even worse!

        Surely an ethics complaint (maybe we can use a name from Coronation Street!) would be a good start. Wouldn’t this work here?

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        • It’s not so much that it’s shady as this points to a procedural problem with the system. I don’t mind a Senator taking advantages of procedural tools to prevent an outcome he finds undesirable. The objection I have in the instance of confirmations and nominations is that those procedural tools undermine the Constitutional authority of coequal branches in a way that is inconsistent with the spirit of the Constitution. (I don’t think this argument applies in the purely legislative context, though).

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  2. I don’t have any particular argument with anything you’ve written here, but as a side note it’s worth mentioning that there is a workaround for filibustering nominations: recess appointments. The reason the executive is hesitant to use them is to avoid gratuitously pissing off the Senate. But if the Senate can hardly be pissed off if they are overusing holds and filibusters to routinely prevent nominations from getting to a vote in the first place. Eg, if Sen Shelby’s holds are appointed by recess appointment, I don’t think anybody except Sen Shelby will be pissed off.

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  3. All this makes sense to me Mark. The Senate has worked its rules to maximize power for individual senators in specific circumstances, not for effective governing. Then when each party is pissed they talk about reforms but don’t want to lose their own perks. How to have a useful Senate is not really even in the discussion it seems. I can see a place for the filibuster but only for cosmically major issues and used sparingly.

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    • I tend to agree with this position, greg. The trouble for me is that I can’t think of any way to procedurally draw the line between cosmically important legislation and less important legislation. So from a rules perspective on the legislative front, you’re left with either no filibuster at all or a filibuster that is rife for abuse. I think the latter is preferable, but it’s a close issue for me. I do think, however, that you can easily craft a rule that draws the line at debate over nominations and appointments.

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      • I agree that its not really possible to draw a line at what is cosmically important and what is only really really important. Ideally institutional norms would help with that kind of thing, but the senate is way to far gone for that. Having no filibuster will be better if the need for super majorities continues.

        It would also be good if the senate had to confirm far fewer positions. Judges make sense, but most of the other confirmations just seem pointless. Let the prez hire his people for the most part.

        And holds just seem pointless and wrong. Maybe if a hold lasted for a week or a month then had to go to a vote it might be reasonable. As it is now holds are just being abused.

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  4. Mark: “Despite our system’s use of “checks and balances,” there can be little dispute as to the primary Constitutional role of each branch. The Executive is responsible for the execution of laws that Congress has passed; the judiciary is charged with deciding “cases and controversies”; and the Congress is charged with legislation.

    However, the Executive cannot competently perform its duties if the Senate refuses to confirm a sufficient number of officers to do so. ”

    Please note that ‘the Executive cannot competently perform its duties if the Senate refuses ‘ to pass a budget which allows it to do so; this is *not* a good argument that the Senate should not have the power to pass/not pass a budget.

    Unless ‘advice and consent’ some means ‘required to consent’, confirming nominees is a power of the Senate, every bit as legitimate as the power of the president to nominate people and for good reason – this keeps the Excecutive from appointing whomever he so wishes. And in the case of lifetime-tenured judges, this is even more important; for example Roberts and Alito will shape the country for decades down the road.

    The real problem is that the way the Senate conducts its business is open to one senator holding up anything and everything, with no cost to that senator. This was restrained by custom, until (93-4? under Dole) custom was discarded.

    The apt comparison is by Paul Krugman, to Poland’s Liberum Veto (

    This also has relevance to checking the powers of the Executive; one of the things I realized during the Bush II administration was that checks and balances could neutralize checks and balances – e.g., if a single Senator could block anything, then it’s almost impossible for the Senate to check the Executive, if the Executive has even a minority of Senators supporting him. Beforehand, this meant at least 41, but the recent crap demonstrates that a few would be enough.

    I *would* have said before that a few Senators getting incredibly unreasonable about protecting an abusive president would result in the swift alteration of the way that the Senate did business, but I’ve been dissuaded of that, both during the Bush II admininstration, and in the past year (when it’s been clear that the Senate is almost as incompetant as any example from history one cared to cite).

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