While the threat of the "nuclear option" to eliminate the power to filibuster judicial nominations seems to be "fizzling," William & Mary Law School Professor and ACS Member, Michael Gerhardt explains in an upcoming essay in Constitutional Commentary, "No one knows for sure what reform, if any, is in store for the filibuster. If past is prologue, we can expect questions about the constitutional of the filibuster to persist." Gerhardt adds,
In spite of the fact that intense debates over the constitutionality of the filibuster have been front page news and intensely divided the Senate over the past year, less than a handful of legal scholars have devoted serious attention to the legality of the filibuster. Determining the constitutionality of the filibuster is, however, by no means easy. It requires analyzing surprisingly complex problems within the legislative process.
Gerhardt's essay adds to the limited scholarship on the issue of the constitutionality of filibuster with a comprehensive analysis that ultimately concludes, "[t]he filibuster may be an unusual, occasionally (if not frequently) disagreeable legislative practice, but it is not unconstitutional." Gerhardt reaches this conclusion through an exploration of the constitutional arguments both for and against the filibuster, this historical precedent of the use of the filibuster, the role of the filibuster in "counter-balancing some of the other counter-majoritarian features of the Senate," and the ability of the majority party and the president to "circumvent the obstruction of a substantial minority of senators." He explains:
[T]he filibuster is best understood as a classic example of a non-reviewable, legislative constitutional judgment. It is also a practice that has the same claim to constitutionality as many counter-majoritarian practices within the Senate, including the committee structure and unanimous consent requirements. The Constitution permits all of these practices, though it does not mandate any of them. These practices define the Senate's uniqueness as a political institution, particularly its historic commitments to various objectives--respecting the equality of its membership and to minority viewpoints; encouraging compromise on especially divisive matters; and facilitating stability, order, and collegiality in the long run. The principal checks on these practices, including the filibuster, are political. They include the Senate Rules, the need to maintain collegiality within the institution, and the political accountability of senators for their support for, or opposition to, filibusters.
Gerhardt begins with the basic constitutional argument supporting the filibuster that the Article I, Section 5, explicitly provides, "Each House [of the Congress] may determine the Rules of its Proceedings." He then argues in depth that the historical use of the filibuster offers a secondary authority for it legitimacy:
The filibuster has been employed, in one form or another, as extended debate in the Senate for more than two hundred years. In fact, "the strategic use of delay in debate is as old as the Senate itself. The first recorded episode of dilatory debate occurred in 1790, when senators from Virginia and South Carolina filibustered to prevent the location of the first Congress in Philadelphia." A recent Congressional Research Service study shows that from 1949 through 2002, senators have employed the filibuster against 35 presidential nominations, on 21 of which senators had sought and invoked cloture.
Gerhardt's concedes that "Neither [of the arguments]...definitely settle the constitutional of the filibuster," but he adds, "In constitutional law, there are few knock-out punches, and each of the arguments made on behalf of the constitutional[ity] of the filibuster are prone to counter-arguments." There are, according to Gerhardt, four principal grounds in which the constitutionality of the filibuster have been challenged:
The Framers did not include it among the supermajority voting requirements they had expressly listed in the Constitution, it violates majority rule in the Senate, it impedes a president's nominating authority, and a supermajority voting requirement to end debate on amending the cloture rule is an impermissible entrenchment that allows one Senate to bind the hands of a future one.
Gerhardt dedicates a vast majority of his essay to analyzing each of these arguments in detail. Ultimately he finds several basic and universal fallacies with each argument supporting the view that the filibuster is unconstitutional:
First, they are circular, i.e., they each assume rather than establish the conclusion that majority rule is a fixed, constitutional principle within the Senate. Second, they cannot be reconciled with the constitutional structure as it was designed or has evolved. Third, Article I contains no explicit or implicit anti-entrenchment principle that would preclude the Senate from adopting, for the sake of institutional stability and order, certain procedural rules that carry over from one session to the next and may only be altered with super-majority approval.
In the end, Gerhardt, "in anticipation of further debate and the possible reform of [the filibuster rule]," explores what debate over the filibuster rule "teaches us about the constitutional discourse within the Senate." He explains that ultimately there is "the need for institutional safeguards to ensure the quality of constitutional debate within the Senate," and "the need to develop a coherent notion of non-judicial precedent."Gerhardt concludes with well-reasoned explanation of the importance of the filibuster in the political process:
It reflects the Senate's longstanding respect for minority views and the equality of its membership; it provides senators with a voice that might not have the same volume in an institution (like the House) in which the majority is in total control. The filibuster has had the salutary effect of counter-balancing some of the other counter-majoritarian features of the Senate, such as the committee system, by enabling individual senators to block legislation or nominations favored by a committee or to force different nominations or changes in legislation rejected by a committee. The filibuster has the additional salutary effect of encouraging the President and the Senate to find common ground to resolve their differences. With regard to nominations to an independent branch of government such as the judiciary, the filibuster encourages the President to find common ground with the Senate by nominating individuals who can garner consensus. The need to find such common ground should not be discounted, especially with respect to judicial nominations. Filibusters are a useful way of checking and balancing the desire of a temporary majority to pack the federal judiciary with lifetime appointees who are picked, at least in part, on the basis of their devotion to the broad political agenda of the party in power. It is not bad policy for a super-majority sometimes to be needed to approve someone who will wield significant power within our system of government long after the dissolution of the majorities which have brought into power the President who has nominated him and the Senate which has confirmed him.
And, in the end, "[i]f the majority's will is frustrated, the Constitution provides two remedies." Gerhardt argues that the president's power to make recess appointments and the majority's (and president's) power to use the political process to "exact revenge" or "to seek common ground to resolve their differences" serve as paths to "circumvent the obstruction of a substantial minority of senators." Gerhardt explains, "Whichever path they follow is constitutional, just as constitutional as the filibuster itself."