The latest kerfuffle in Washington involves the threat of a filibuster against the nominations of Dawn Johnsen (to head the OLC) and Harold Koh (as the State Department Legal Advisor). My view is that every filibuster of a nominee on the executive calendar, with the possible exception of a Supreme Court Justice, is wrong. It was wrong when the Democrats did it to Miguel Estrada and President Bush’s other judicial nominees, and it would be equally unfair if done to Johnsen and Koh.
The problem, I think, is that the costs of a filibuster (on the nominees and on democratic values) are not fully internalized by the Senators engaged in that practice. In other words, it is now too easy to mount a filibuster. I am not suggesting that filibusters be abolished or that the number of Senators required to invoke cloture be reduced. A little history will help explain my approach.
In the 1970s, the Senate amended its rules and reduced the cloture requirement from 67 to 60. The logic behind this change was powerful, as the higher threshold seemed unreasonable and carried the stigma of southern opposition to civil rights. Nevertheless, this reform had an unintended consequence–it normalized the filibuster. Prior to the 1970s, filibusters were rare. There was a norm within the Senate that they should be used only in extraordinary circumstances. Furthermore, a filibuster actually involved speaking round-the-clock in “Mr. Smith Goes to Washington” style. Today, by contrast, filibuster threats are invoked all the time and require little more than a vote against cloture by enough Senators. The Senate almost never goes through with extended debate when cloture is rejected–they just move on to something else. There have been attempts to get the majority to make the minority debate round-the-clock and suffer some pain, but that founders on the fact that most Senators would rather go home, see constituents, or deal with other issues. In other words, when push comes to shove, the majority always flinches when it has to exercise its discretion to force a “true” filibuster.
This is exactly the type of situation where a rule would be helpful. Rule 22 of the Senate states that when cloture is invoked, debate on the item in question may continue for no more than thirty hours. Suppose that the rule was modified to say that if cloture is denied then those voting no must continue debate for another thirty hours before the Senate can exit Executive Session and take up legislation. This would impose a real cost on those Senators, especially near a scheduled recess when everybody wants to leave town, and restore the filibuster to a more appropriate level of difficulty. With respect to executive nominations, this change could also be self-enforcing because the President can just recess appoint all nominees who are blocked under the current rule. (When it comes to legislation, getting the Senate to change its rules is a lot harder.)
Whether you like this idea or not, I think we do need to take seriously Sandy Levinson’s admonition to give more scrutiny to the structural (or nonjusticiable) parts of the Constitution.