Sen. Grassley Misleads on Filibuster Reform, Should Consult Federalist Society

December 5, 2012

by Jeremy Leaming

Filibuster reform is needed because Senate Republicans have gone over a cliff of some sort, using the tool in an unprecedented manner to thwart consideration of significant legislation and, of course, scuttle or delay some judicial nominations.

At People For Blog, Paul nails Sen. Chuck Grassley (R-Iowa) for his wildly misleading blather about the filibuster. Pointing to Grassley’s Dec. 3 statement on supposedly “setting the record straight” on consideration of judicial nominations during lame-duck sessions, Paul notes that the senator avoided the “topic completely,” and instead crowed about his party’s generosity for voting on at least one nominee during the lame-duck Congress. Grassley claimed in his statement that it is rare for the Senate to confirm judges during lame-duck sessions in presidential election years. “Republicans have been more than fair to this President and his judicial nominations,” Grassley’s statement reads.

Beyond misleading, Grassley’s statement is disingenuous. Senate Republicans have been anything but generous to President Obama. Instead they have used the threat of filibuster and other delaying tactics to slow the pace of confirmations. Their actions have led to a federal bench with more than 80 vacancies, many of them considered judicial emergencies. (See for more on the crisis surrounding the federal courts.)  

The blockade of judges, as Paul notes, has also created “a huge backlog” of nominees to confirm. This week the Senate has confirmed two of the 19 nominations left pending when it recessed in August for campaigning. The Senate confirmed Paul Grimm, for a seat on the district court in Maryland and Michael P. Shea for a district court seat in Connecticut. Both nominees cleared the Senate Judiciary Committee months ago. That means up-or-down votes on those nominees and the 17 others in a functioning Senate should have occurred months ago. Republicans, however, may have wanted to stall those nominations in hopes that their party would capture the White House and fill the vacancies with right-wing judges.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) blasted his colleagues following today’s action on Shea, saying “Senate Republicans are establishing another harmful precedent by refusing to proceed on judicial nominees with bipartisan support before the end of the session. They have found a new way to employ their old trick of a pocket filibuster. They stall nominees into the next year and force the Senate to continue work on nominees from the past year for the first several months of the new year.”

The reality of the situation is that politics has hobbled the federal bench. Americans who need access to the courts to protect their rights are finding courts with fewer judges and mounting piles of cases to handle. Indeed, there are backlogs of cases in federals courts from coast to coast.

Senate Republicans’ troublesome efforts to stall or block judicial nominations and vital pieces of legislation have helped fuel the movement for reforming the filibuster. Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) have a plan to make it more difficult for Senate Republicans to launch and maintain a filibuster. The plan in part would require senators to publicly explain why they are holding up consideration of bills or nominations.

Senate Minority Leader Mitch McConnell (R-K.Y.) and Grassley not surprisingly are loudly fighting the effort to blunt one of their tools for obstructing Senate work.

McConnell and Grassley should consult some material from The Federalist Society. In a 2003 paper, “Filibusters and the Constitution,” a group of attorneys explained why filibusters of judicial nominees until recently had “never been part of Senate tradition ….” The Federalist Society paper was issued when a Democratic majority was filibustering some of President George W. Bush’s judicial nominees. But the paper is still available, and most certainly relevant.

The Federalist Society paper stated that using the filibuster to scuttle judicial nominations was not only unprecedented but offensive to the Constitution. Employing the filibuster on judicial nominations, the paper continued, weakens the president’s constitutional authority to select Article III judges and “threatens the independence of the federal judiciary by politicizing the confirmation process to an even greater extent.”

The Federalist Society paper also argued that the Senate can, regardless of the current rhetoric from McConnell and Grassley, change the filibuster. Citing Supreme Court precedent the authors noted that it has been well settled that the “Constitution empowers each house of Congress to determine its rules of proceedings ….”

In 2003, law professor and co-founder of the Federalist Society Steven G. Calabresi authored a piece for The Wall Street Journal arguing that constitutional law scholars “of all political persuasions … agree that the Senate can always change its rules by a simple majority vote. Three vice presidents and law professors Erwin Chemerinsky on the left to John McGinnis on the right agree.”

Calabresi’s WSJ piece urged filibuster reform in the context of judicial nominations. After noting the rather tawdry history of the filibuster in the Senate – it was used often to protect Jim Crow laws – Calabresi said the “unprecedented extension of the filibuster to judicial nominees supported by a majority of the Senate threatens to raise the vote required for confirmation from 51 to 60 in violation of the Advice and Consent Clause” of the Constitution.

The abuse of the filibuster during the Obama administration has significantly spiked. Senate Majority Leader Harry Reid, as The Huffington Post recently noted has “faced 385 filibusters during his leadership while Lyndon Johnson had to deal with only one when he ran the Senate.”

Instead of advancing wobbly and misleading rhetoric to protect their over-the-top use of the filibuster, Sens. McConnell and Grassley should read what the Federalist Society has said about the use of the filibuster and the ability and need to change it. That work may not halt the senators’ efforts to block filibuster reform, but it may brace them for a change in procedure that is looking like a real possibility