The United States has been seriously affected by an institution, a parliamentary device really, called the filibuster.
The deal is that Senators have the right to debate the merits of a measure for as long as they want. Usually they don't want to debate all that long and they soon vote up or down on a pending bill and move on.
However when senators get really exercised over what seems to be a life-or-death measure, they'll talk until the cows come home. Southern Sen. Strom Thurmond (D - S. Carolina) filibustered the 1964 Civil Rights Bill for over 24 hours straight to keep it from coming to a vote and passing, as it eventually was. It put the teeth into the notion of integration in public restaurants, hotels and accommodations. Integration was THE big issue of the day when I was growing up. Now we take it for granted, but it took another civil war to accomplish and there's still a far piece to go.
During a filibuster, the senator needs something to say. So he'll read the phone book from his state. Reading all those names of his voters who would, if asked, oppose this bill, is good for taking up a few hours. Or, the Bible, always good for any number of hours. This is relevant to the bill, of course. How? That might take more time to explain.
Taking more time to explain is what a filibuster is about, for while a bill is being filibustered and the phone book read, all Senate business, the nation's business, comes to a screeching halt. For days the Senate is put out of business, for the filibustering senator is entitled to yield the floor to his fellow supporters who have come to the chamber armed with reading material. The sergeant-at-arms sets up cots and blankets nearby so the filibusterers can get a little much needed shut-eye. And so the filibuster continues.
Military appropriations bills stall. The president's legislative program stalls. And the nation is treated to their senators looking like their village idiots. Except for those who favor defeating the bill being filibustered, like the South on Civil Rights.
When I was growing up, the filibuster was THE main tool of the so-called Southern Bloc of senators, led by Richard Russell of Georgia, to block ANY civil rights legislation from coming up for a vote in the Senate. If you'd care to read the tale well told, see Robert Caro's second volume on Lyndon Baines Johnson called "Master of the Senate."
LBJ had to deal with this as the Senate Majority Leader whose northern Democrat wing, led by Hubert Humphrey of Minnesota and Paul Douglas of Illinois and others from the Northeast were pushing for civil rights for the nation's ghetto-ized, marginalized, non-voting, segregated blacks. What LBJ did was talk "cracker" to the South and human rights to the northern liberals.
LBJ wanted to be president someday. He'd been working at it for decades. He told the Southern Bloc that if they wanted to see a good ol' southern boy as president some day, they'd better let him throw a bone to the northern liberals in order to do some good for the blacks. He proposed taking the teeth out of the pending 1957 Civil Rights Act. It was unenforceable. The northern liberals howled over the betrayal.
LBJ argued, take what you can get whether you like it or not, this is the first civil rights bill that stands a chance of passing since the one of 1868. This is the camel's nose under the tent. The north took it. 1964 was next, followed by the Voting Rights Bill of 1965.
The nation has never been the same. It has been immeasurably better since we lanced the boil of institutionalized racism infecting so much of the country. In those days, racist talk was expected, sort of like talking baseball or the weather. It was how people let each other know whether they were good fellas or not. Sort of like telling anti-gay jokes. There is a whole genre of anti-black jokes, anti-Jew, anti-Polish, anti-Italian, and anti-anything jokes that serve this function of indicating what kind of a person you want to be seen as.
Today it is politically incorrect to be heard telling such jokes, or to tell them yourself. Too much bad comes from them. In Germany now, the schools identify the sort of jokes and things said that are understood to be forms of racism and anti-Semitism, whether veiled or direct. Why? To try to avoid going down the wrong road again.
So if you ask me whether I feel that the filibuster is a wonderful democratic technique to insure the nation's checks and balances, I don't buy it. Filibustering was the technique for blocking passage of a federal anti-lynching law for decades while whites captured, tortured, strung up, photographed, partied under, and burned Americans for the crime of being black. Filibuster was the most anti-democratic device invented by the evil mind of man to deprive other men of the same rights enjoyed by the filibusterer.
This comes up now because the shoe is on the other foot.
A Conservative Republican administration catering to its far-right wing has nominated some 214 federal judges of whom 10 have been rejected by Democrats as being too far out of whatever the mainstream is these days. The Republicans are outraged at this blocking of THEIR court-packing plan. They want to keep pushing. The Dems, led by Sen. Charles Schumer of New York, a Harvard Law grad and no slouch as a fighter, debater and lawyer, is leading the the threat of filibuster. The Repubs do not have the votes to close down the filibuster, which needs a super-majority to achieve "cloture," as it is called, 60 votes, I think.
So the Repubs are looking to various alternatives to get around the threatened filibuster, such as by passing a law prohibiting filibusters over federal judicial nomination. The "nuclear option" or the "constitutional" option are some of the terms being used to describe the impending constitutional crisis.
The filibuster was not intentionally built into the framework of democratic government. If you were writing up a new constitution for any nation on earth, including ours, you would never include the right to talk a measure to death by talking forever as an express textual right for all time. You might allow for a reasonable time to talk, no less than, say three or four days, to give a measure, such as going to war or relinquishing the Panama Canal a fair shot at being aired, but then onto a vote or other business. But maybe I'm missing something about free speech here.
Even free speech has its reasonable restrictions, and filibuster, by definition, is an unreasonable exercise of the right to speak to bring national business to a halt in the name of national business. 'Tis a conundrum, but one I can't see supporting.
Someone tell me, please, why filibuster is good just because the speaker may favor my side of a debatable issue.
Well, my question has been answered, in the form of a letter circulated to conlawprofs, requesting endorsements. I didn't sign on, for the reasons stated above. But some quite respected people have, including my own conlawprof at NYULS four decades ago, Norman Redlich, who has signed on in favor of the filibuster, at least for now. That give me pause.
I still have trouble believing that such a rule as allowing the filibuster is good. It's good when you REALLY, REALLY, need to obstruct the majority because of what you think is the tyranny of the majority, as the South did during the civil rights era. Or as the folks today who want to block some of Pres. Bush's far-right judicial nominees.
This seems like a helluva way to run a railroad. Watch out for the logs we've piled onto the tracks to keep the train from proceeding towards its destination, because we don't like its destination, so we'd rather derail it.
This is democracy?
Filibuster is more like the opening shot of the next civil war. Maybe filibuster is good in the sense that at least we don't have bodies lying all over the field as at Gettysburg. We'll have a bloodless civil war, in the meantime.
Dear colleagues,
U.S. Senate leaders are preparing to use what they have called the "nuclear
option," a tactic that, without gaining a 2/3 vote to change Senate rules,
would have Dick Cheney (as President of the Senate) rule that Supreme Court
or other federal judicial nominees cannot be filibustered.
Continuing rules that have been in effect for decades allow filibusters to
be overridden only if 60 votes can be found to stop debate. The "nuclear
option" would evade the rule through interpretation, without going to the
trouble of changing it, and would itself need only 50 votes plus Cheney's
vote to prevail.
Please consider the letter below from law professors, circulated by the
Alliance for Justice. If you wish to be listed as a co-signer, contact
alikoff@afj.org (just click on this: mailto:alikoff@afj.org). Please
consider forwarding this message to others and to other lists, so that they
may distribute it to others as well. The current list is over 300 law
professors from 45 states.
The deadline is COB April 13th, which means that further distribution to
others needs to take place immediately.
More information, including testimony, bi-partisan opposition from current
and former Senators, George Will and other commentators, and over 275
editorials from 41 states and DC, is available at:
http://www.earthjustice.org/policy/judicial/whats_new/index.html#filibuster
Materials that I have found particularly interesting include:
http://www.earthjustice.org/policy/judicial/pdf/mcclure-wallop_WSJ_op-ed.pdf
(Wall Street Journal Op-Ed by Republican former Senators Jim McClure of
Idaho and Malcolm Wallop of Wyoming)
http://www.byrd.senate.gov/byrd_speeches/byrd_speeches_2005_march/byrd_speec
hes_03102005.html
(a March 10, 2005, speech by Senator Robert Byrd)
The link above will break upon e-mail transmission, so you must use cut and
paste to make it work)
TO RSVP or for questions, please contact:
Amy Likoff
Judicial Selection Project/Grassroots Program Associate
Alliance for Justice
11 Dupont Circle N.W.
Second Floor
Washington, DC 20036
Phone: (202) 822-6070
Fax: (202) 822-6068
alikoff@afj.org
www.afj.org and www.independentjudiciary.org
DRAFT LETTER
April __, 2005
The Honorable Bill Frist
Senate Majority Leader
509 Hart Senate Office Building
Washington, DC 20510
Dear Senator Frist:
We, the undersigned professors from law schools throughout the country, are
writing to express our opposition to any effort to eliminate the 200-year
old right to filibuster in the United States Senate. We are deeply troubled
by your reported plan to dismantle one of the only protections for the
minority party, drastically weaken the Senate’s constitutionally recognized
duties of advice and consent, and rubber-stamp the President’s nominees for
the federal courts. We urge you and your colleagues to protect the honored
traditions of the Senate and strive to work toward a spirit of
bipartisanship.
The courts belong to all Americans, not just the party in power. New
appointees will help decide, among many other things, the scope of the
constitutional right to privacy -- and nominees to the Supreme Court will
help decide whether that right will continue to be recognized at all --
whether the courts will continue to allow the federal government to protect
our air and water, and whether Americans can count on the enforcement of
laws that protect our civil rights. Federal judges exercise an enormous
amount of power in the lives of ordinary Americans. Further, the average
tenure of federal judges, who unlike executive branch appointments receive
lifetime terms, has steadily risen to 24 years. This fundamental,
non-political branch of our democracy should not be at the center of a
partisan power grab.
The Senate filibuster serves an important function in the checks and
balances system, preventing a partisan majority from running roughshod over
the minority party while promoting bipartisan compromise and moderation. It
is a particularly important check when all three branches of government are
controlled by one party. As part of the great compromise, the framers of
the Constitution designed the Senate to be a fundamentally
countermajoritarian institution. Unlike the House of Representatives, each
state is represented by two Senators, regardless of its size. This is
evidenced by the fact that the 55 Republican Senators represent 131 million
Americans while the 44 Democratic Senators represent 13 million more – 144
million. Throughout American history, the Senate, with its longer terms and
rules of unlimited debate, has acted as a deliberative body to restrain the
impulses of the House and the actions of the President. And since the
earliest days of the Republic, the right of extended debate has played an
integral part in the Senate’s historic role as restrainer – “an effective if
incalculable defense against oppression and overbearing authority.”
The case for unlimited debate for judicial nominations is far stronger than
with respect to other nominations or legislation. While non-judicial
appointments are intended to carry out the President’s policies, judges
constitute an independent third branch, designed to keep Congress and the
executive within constitutional bounds. It is a fundamental and
indispensable element of our checks and balances system that judges should
not be partial to anyone. Further, the fact that federal judges have
life-tenure and can exercise great power, accountable to no one, for several
decades, makes protecting the Senate minority’s right of extended debate on
judicial nominations especially vital. The Senate’s decision to confirm is
practically irreversible, even when new information casts serious doubt on a
judge’s fitness to serve. Such irreversibility and longevity are not true
of either non-judicial nominations or legislation
To check the appointment powers of the President, the United States
Constitution assigns the Senate a critical co-equal role in the judicial
appointment process,. This role is mandated by the founding fathers, and is
supported by history, documented by constitutional scholars, and recognized
by Republicans. As Article II, Section 2 of the Constitution states, “[The
President of the United States] shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint . . . Judges of the Supreme Court,
and all other Officers of the United States.” The framers, fresh with
memories of the abuses of King George III, intentionally designed a system
that divided the appointment power between the Senate and the President.
Republican Senator Strom Thurmond, in opposing the nomination of Abe Fortas
to be Chief Justice in 1968, explained the Senate’s co-equal role as
follows:
It is my opinion, further, that if the Senate will turn down this
nomination, we will thus indicate to the President and future Presidents
that we recognize our responsibility as Senators. After all, this is a dual
responsibility. The President merely picks or selects or chooses the
individual for a position of this kind, and the Senate has the
responsibility of probing into his character and integrity, and into his
philosophy, and determining whether or not he is a properly qualified person
to fill the particular position under consideration at the time.
The founding fathers included the “advice and consent” clause not as a
rubber stamp, but with the intention that rejection of nominees was a very
real possibility. This possibility has been recognized by Senators of both
parties. For example, former Senate Judiciary Committee Chairman Orrin
Hatch commented that “conducting a fair confirmation process most assuredly
does not mean granting the president carte blanche in filling the federal
judiciary.”
Senators of all political persuasions have used their
constitutionally-prescribed “advice and consent” authority to reject
judicial nominees. Between 1789 and 1900, 20 of 85 Supreme Court nominees
did not make it to the bench – they were rejected, withdrawn or not acted
upon. Delaying action and filibusters on federal court nominees has
precedent in more recent history as well. Republicans blocked over 60 of
President Clinton’s nominees – often with a single senator, rather than the
substantial minority of 41 Senators that a successful filibuster requires.
Senate Republicans also have expressly acknowledged their right to
filibuster judicial nominations. During a 2000 filibuster of two of
President Clinton’s nominees, Republican Senator Robert Smith of New
Hampshire declared, “Don’t . . . tell me that somehow I am violating the
Constitution of the United States of America by blocking a judge or
filibustering a judge I don’t think deserves to be on the court. That is my
responsibility. That is my advice and consent role, and I intend to
exercise it.”
In the past, presidents have honored the Senate’s “advice” role by
consulting even Senators of the opposing party on judicial nominations. For
example, when the Republican Party took control of the Senate in 1995,
President Clinton consulted Senate Judiciary Committee Chairman Orrin Hatch
in advance of any nomination, and withdrew nominations opposed by Republican
Senators, despite criticism from his own party. In addition, Senator Hatch
has written that even though he belonged to the minority party in 1993-94,
President Clinton consulted with him to nominate Ruth Bader Ginsburg and
Stephen Breyer for the Supreme Court. The Bush Administration has flatly
refused to engage in any such consultation.
Despite current assertions to the contrary, there is no legal basis for the
suggestion that the use of filibusters in judicial nominations is
unconstitutional. The Constitution does not say that a simple majority vote
is required for Senate confirmation of a nominee, and it does not guarantee
a vote on any nominee. Rather, Article I, Section 5 of the Constitution
authorizes the Senate to determine its own rules of procedure, and Senate
Rule XXII requires 60 votes to end debate on legislation or nominations.
This tradition of requiring a super-majority to end debate reaches back to
our nation’s earliest days. The idea that the majority party can
unilaterally change the rules in the “middle of the game” is undemocratic.
Further, if filibustering judicial nominees is unconstitutional, so are
other common Senate practices used to protect the rights of individual
Senators, such as the blue slip process and senatorial “holds.”
Republicans, who used these practices profligately during the Clinton
Administration, are not making that argument.
Elimination of the filibuster in regard to judicial nominations, dubbed the
“nuclear option,” would overturn the Senate’s 200 year check on recklessness
and would have disastrous consequences for our democracy. As former
Republican Senate Majority Leader Howard Baker wrote in 1993, destroying the
right to filibuster, “would topple one of the pillars of American Democracy:
the protection of minority rights from majority rule. The Senate is the
only body in the federal government where these minority rights are fully
and specifically protected. It was designed for that purpose by America’s
Founders, who saw it, in Jefferson’s words, ‘as a saucer into which the
nation’s passions may be poured to cool.’”
Over the past several years, there have already been significant damages to
the rights of the Senate minority and individual Senators. For example, in
2003-04, Senator Hatch unilaterally changed several Judiciary Committee
rules that had protected the minority, dropping the blue slip requirement,
the requirement that at least one member of the minority party agree to vote
on a nominee if any Senator on the Committee objected to holding a vote, and
the “Strom Thurmond rule,” which prevented the Senate from considering
judicial nominees after the presidential nominating conventions. Such
changes have led to an environment where the majority party has little
incentive to compromise and has left the minority with no means beyond the
filibuster to protect their sacred advice and consent duty.
Invoking the nuclear option would also set a dangerous precedent. The
Constitution is equally silent regarding the legitimacy of supermajorities
to end debate on legislation and judicial nominations. Therefore, the same
arguments being used today to try to end filibusters on judicial nominees
can be used tomorrow to end filibusters on legislation.
We believe that filibusters on judicial nominations have been employed
judiciously and appropriately. During President Bush’s first term, the
Senate confirmed 204 of his nominees, blocking only 10 of the most radical,
out of the mainstream picks. In fact, President Bush has now appointed 24%
of all active federal judges, including 20% of all circuit judges. Further,
despite claims to the contrary, the federal judiciary does not have a
vacancy crisis. There are currently 43 vacancies in the federal
judiciary—much lower than the 100-plus vacancies that often existed during
the Clinton Administration.
We urge you to reaffirm the Senate’s constitutional role in the judicial
selection process and strongly oppose any efforts to eliminate the Senators’
right to filibuster. It is important to remember that the pendulum swings,
and that the majority today will one day be the minority. Rather than
creating chaos in the Senate and destroying the Senate’s honored traditions,
there is a clear solution to ending delays on nominations: consultation.
President Bush must stop trying to pack the courts with extremist nominees
and take seriously the “advice” portion of the advice and consent clause by
consulting with Senators from both parties to select moderate, consensus
candidates. History proves that consultation produces an excellent federal
judiciary. We urge you to strive to retain the crucial role the Senate
plays in selecting our nation’s federal judges.
SIGNERS SO FAR
Mark Aaronson
Clinical Professor of Law
University of California Hastings College of Law
Melanie B. Abbott
Associate Professor of Law
Quinnipiac University School of Law
Richard L. Abel
Connell Professor of Law
UCLA School of Law
Khaled Abou El Fadl
Professor of Law
UCLA School of Law
Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Rebecca Brown Allen
Professor of Law
Vanderbilt University Law School
Diane Marie Amann
Visiting Professor of Law
UCLA School of Law
Anthony G. Amsterdam
Professor of Law
New York University School of Law
Mark F. Anderson
Associate Professor of Law
Temple University Beasley School of Law
Deborah Anker
Jeremiah Smith, Jr. Lecturer on Law
Harvard Law School
Annette R. Appell
Professor of Law & Associate Dean for Clinical Studies
University of Nevada William S. Boyd School of Law
Elvia R. Arriola
Associate Professor of Law
Northern Illinois University School of Law
Frank Askin
Professor of Law
Rutgers Law School – Newark
Michael Avery
Associate Professor of Law
Suffolk Law School
Barbara Allen Babcock
Crown Professor of Law Emerita
Stanford Law School
James Francis Bailey, III
Professor of Law Emeritus
Indiana University School of Law
Elizabeth Bartholet
Morris Wasserstein Public Interest Professor of Law
Harvard Law School
Margaret Martin Barry
Associate Professor of Law
Catholic University Columbus School of Law
Linda M. Beale
Associate Professor of Law
University of Illinois College of Law
John S. Beckerman
Associate Dean for Academic Affairs
Rutgers University School of Law – Camden
Terri M. Beiner
Professor of Law
University of Arkansas at Little Rock William H. Bowen School of Law
George Bell
Clinical Professor of Law
University of Illinois College of Law
Leslie Bender
Board of Advisors Professor of Law
Syracuse University College of Law
Steve Berenson
Associate Professor of Law
Thomas Jefferson School of Law
Adele Bernhard
Associate Professor of Law
Pace Law School
Susan Bitensky
Professor of Law
Michigan State University College of Law
Susan Block-Lieb
Professor of Law
Fordham Law School
Robert M. Bloom
Professor of Law
Boston College Law School
Eric Blumenson
Professor of Law
Suffolk University Law School
Alfred W. Blumrosen
Thomas A. Cowan Professor of Law Emeritus
Rutgers School of Law Newark
Charles S. Bobis
Professor of Law
St. John’s University School of Law
John Charles Boger
Wade Edwards Professor of Law and Deputy Director of the Center for Civil
Rights
University of North Carolina School of Law – Chapel Hill
John E. Bonine
Professor of Law
University of Oregon
Cynthia Bowman
Professor of Law
Northwestern University School of Law
Carolyn S. Bratt
W.L. Matthews Professor of Law
University of Kentucky College of Law
Katherine S. Broderick
Dean and Professor of Law
UDC Clarke School of Law
Mark S. Brodin
Professor of Law
Boston College Law School
Allan Brotsky
Professor of Law Emeritus
Golden Gate University School of Law
Darryl Brown
Visiting Professor of Law
University of Virginia Law School
Maryann Brown
Legal Writing Professor
Widener University School of Law
Elizabeth M. Bruch
Associate Professor of Law
Valparaiso University School of Law
Susan Bryant
Professor of Law
CUNY School of Law
Sande L. Buhai
Clinical Professor of Law
Loyola Law School
Lewis Burke
Professor of Law and Director of Clinics
University of South Carolina School of Law
Scott Burris
James E. Beasley Professor of Law
Temple University Beasley School of Law
Robert Calhoun
Professor of Law
Golden Gate University School of Law
Janet Calvo
Professor of Law
CUNY School of Law
John J. Capowski
Associate Professor of Law
Widener University School of Law
William Carter
Associate Professor of Law
Case Western Reserve University School of Law
Cathleen Cavell
Adjunct Professor
Boston College Law School
David L. Chambers
Wade H. McCree Jr. Collegiate Professor Emeritus of Law
University of Michigan Law School
Frederick Tse-shyang Chen
Professor of Law
Quinnipiac University School of Law
Richard B. Child
Professor of Law
New England School of Law
William G. Childs
Assistant Professor of Law
Western New England College School of Law
Craig W. Christensen
Professor of Law
Southwestern University School of Law
Leroy D. Clark
Professor of Law
Catholic University Columbus School of Law
Stephen Clark
Associate Professor of Law
Albany Law School
Timothy L. Coggins
Associate Dean & Professor of Law
University of Richmond School of Law
Marjorie Cohn
Professor of Law
Thomas Jefferson School of Law
Nancy L. Cook
Associate Professor of Law
Roger Williams University School of Law
Lois Cox
Clinical Professor of Law
University of Iowa College of Law
Scott Cummings
Professor of Law
UCLA School of Law
Richard A. Daynard
Associate Dean for Academic Affairs and Professor of Law
Northeastern University School of Law
Connie de la Vega
Professor of Law
University of San Francisco School of Law
Victoria J. Dodd
Professor of Constitutional Law
Suffolk University Law School
Jane Dolkart
Visiting Professor of Law
American University Washington College of Law
Sharon Dolovich
Acting Professor of Law
UCLA School of Law
Michael Dorff
Professor of Law
Southwestern University School of Law
Norman Dorsen
Stokes Professor of Law
Counselor to the President of New York University
New York University School of Law
Robert F. Drinan, S.J.
Professor of Law
Georgetown University Law Center
Mary L. Dudziak
Judge Edward J. and Ruey L. Guirado Professor of Law and History
University of Southern California Law School
Don Duquette
Clinical Professor of Law
Director of the Child Advocacy Law Clinic
University of Michigan Law School
Melvyn R. Durchslag
Professor of Law
Case Western Reserve University School of Law
Ronald Dworkin
Frank Henry Sommer Professor of Law
New York University School of Law
George E. Edwards
Professor of Law and Director of the Program in International Human Rights
Law
Indiana University School of Law – Indianapolis
Nancy Ehrenreich
Professor of Law
University of Denver Sturm College of Law
Deborah Ellis
Assistant Dean for Public Interest Law
New York University School of Law
Anne S. Emanuel
Associate Dean
Georgia State University College of Law
Sheri J. Engelken
Assistant Professor of Law
Gonzaga University School of Law
Jules Epstein
Visiting Professor of Law
Widener University School of Law
Marie A. Failinger
Professor of Law
Hamline University School of Law
Neal R. Feigenson
Professor of Law
Quinnipiac University School of Law
G. Michael Fenner
James L. Koley ’54 Professor of Constitutional Law
Creighton University School of Law
Zanita E. Fenton
Associate Professor of Law
Wayne State University Law School
Todd D. Fernow
Professor of Law
University of Connecticut School of Law
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
Catherine Fisk
Professor of Law
Duke University Law School
Denise D. Fort
Professor of Law
University of New Mexico School of Law
Sally Frank
Professor of Law
Drake University School of Law
Ann E. Freedman
Associate Professor of Law
Rutgers School of Law – Camden
Howard M. Friedman
Professor of Law
University of Toledo School of Law
Paul J. Galanti
Professor of Law Emeritus
Indiana University School of Law – Indianapolis
Mary Ellen Gale
Professor of Law
Whittier Law School
Paula Galowitz
Clinical Professor of Law
New York University School of Law
Alan E. Garfield
Professor of Law
Widener University School of Law
Theresa Glennon
Professor of Law
Temple University Beasley School of Law
Howard A. Glickstein
Professor of Law and Dean Emeritus
Touro Law Center
Dale D. Goble
Margaret Wilson Schimke Distinguished Professor of Law
University of Idaho College of Law
Carole Goldberg
Professor of Law
UCLA School of Law
Michael J. Goldberg
Professor of Law
Widener University School of Law
Phyllis Goldfarb
Professor of Law
Boston College Law School
Alvin L. Goldman
Lafferty Professor of Law
University of Kentucky College of Law
Robert D. Goldstein
Professor of Law
UCLA School of Law
Victor M. Goode
Associate Professor of Law
CUNY School of Law
James W. Gordon
Professor of Law
Western New England College School of Law
Stuart P. Green
Professor of Law
Louisiana State University Law Center
Martin Guggenheim
Professor of Clinical Law
New York University School of Law
Phoebe A. Haddon
Professor of Law
Temple University Beasley School of Law
Joel F. Handler
Richard C. Maxwell Professor of Law
UCLA School of Law
Leora Harpaz
Professor of Law
Western New England College School of Law
Danielle Kie Hart
Professor of Law
Southwestern University School of Law
Bernadette W. Hartfield
Associate Professor of Law
Georgia State University College of Law
Emily Albrink Hartigan
Professor of Law
St. Mary’s University School of Law
Robert L. Hayman, Jr.
Professor of Law and H. Albert Young Fellow in Constitutional Law
Widener University School of Law
Joann Henderson
Professor of Law
University of Idaho College of Law
Lynne Henderson
Professor of Law
Boyd School of Law – University of Nevada Las Vegas
Renee Franklin Hill
Associate Dean
North Carolina Central University School of Law
Ingrid M. Hillinger
Professor of Law
Boston College Law School
Elizabeth L. Hillman
Associate Professor of Law
Rutgers School of Law – Camden
Bill Ong Hing
Professor of Law
University of California Davis School of Law
Barbara Hoffman
Legal Research and Writing Professor
Rutgers University Law School -- Newark
Wythe W. Holt
University Research Professor of Law
University of Alabama School of Law
Oliver Houck
Professor of Law
Tulane University Law School
Ruth-Arlene W. Howe
Professor of Law
Boston College Law School
Marsha C. Huie
Professor of Law
University of Tulsa College of Law
Sherrilyn Ifill
Associate Professor of Law
University of Maryland School of Law
Ann L. Iijima
Professor of Law
William Mitchell College of Law
Jane Johnson
Professor of Clinical Law
Tulane Law School
Paula C. Johnson
Professor of Law
Syracuse University College of Law
Craig Johnston
Professor of Law
Lewis and Clark Law School
Donald K. Joseph
Visiting Associate Professor of Law
Rutgers School of Law – Camden
Timothy Stoltzfus Jost
Robert L. Willett Family Professor of Law
Washington and Lee University School of Law
David Kairys
James E. Beasley Professor of Law
Temple University Beasley School of Law
Eileen Kaufman
Professor of Law
Touro Law Center
Robert A. Katz
Associate Professor of Law
Indiana University School of Law – Indianapolis
Gregory C. Keating
William T. Dalessi Professor of Law
University of Southern California Law School
Michael J. Kelly
Associate Professor of Law
Creighton University School of Law
Walter J. Kendall, III
Professor of Law
The John Marshall Law School
Neil Kinkopf
Associate Professor of Law
Georgia State University College of Law
Eleanor D. Kinney
Hall Render Professor of Law
Indiana University School of Law – Indianapolis
Kit Kinports
Professor of Law
University of Illinois College of Law
James M. Klebba
Victor H. Schiro Professor of Law
Loyola University New Orleans School of Law
Daniel T. Kobil
Professor of Law
Capital University Law School
Larry Krieger
Clinical Professor and Director of Clinical Externship Programs
Florida State University College of Law
Lewis Kurlantzick
Zephaniah Swift Professor of Law
University of Connecticut School of Law
James A. Kushner
Professor of Law
Southwestern University School of Law
Mae Kuykendall
Senior Associate Dean and Professor of Law
Michigan State University College of Law
Arthur LaFrance
Professor of Law
Lewis & Clark Law School
Robert E. Lancaster
Associate Clinical Professor of Law
Indiana University School of Law – Indianapolis
Sylvia A. Law
Elizabeth K. Dollard Professor of Law
New York University School of Law
Robert G. Lawson
Professor of Law
University of Kentucky College of Law
Hugh M. Lee
Director of the Civil and Elder Law Clinics
University of Alabama School of Law
Raleigh Hannah Levine
Associate Professor of Law
William Mitchell College of Law
Suzanne J. Levitt
Professor of Law and Executive Director of Clinical Programs
Drake University Law School
Christine A. Littleton
Professor of Law
Interim Director, Center for the Study of Women
UCLA School of Law
Stephen Loffredo
Professor of Law
City University of New York School of Law
Susan Looper-Friedman
Professor of Law
Capital University Law School
Maria Pabon Lopez
Assistant Professor of Law
Indiana University School of Law – Indianapolis
William V. Luneburg
Professor of Law
University of Pittsburgh School of Law
Lois R. Lupica
Professor of Law
University of Maine School of Law
Mary L. Lyndon
Professor of Law
St. John’s University School of Law
David Lyons
Professor of Law
Boston University School of Law
James S. MacDonald
Professor of Law
University of Idaho College of Law
Hugh C. Macgill
Professor of Law
University of Connecticut School of Law
Raneta Lawson Mack
Professor of Law
Creighton University School of Law
Holly Maguigan
Professor of Clinical Law
New York University School of Law
Susan F. Mandiberg
Professor of Law
Lewis & Clark Law School
Karl Manheim
Professor of Law
Loyola Law School
Marsha M. Mansfield
Clinical Assistant Professor of Law
University of Wisconsin Law School
Kent Markus
Associate Professor of Law
Capital University Law School
Elizabeth Phillips Marsh
Professor of Law
Quinnipiac University School of Law
Lynn Martell
Clinical Professor of Law
New York University School of Law
Susan J. Martin
Professor of Law
Southwestern University School of Law
Martha McCluskey
Professor of Law
State University of NY at Buffalo Law School
James McGrath
Associate Professor of Law
Appalachian School of Law
M. Isabel Medina
Ferris Family Professor of Law
Loyola University New Orleans School of Law
Michael Meltsner
Matthews Distinguished University Professor of Law
Northeastern University School of Law
Saul Mendlovitz
Dag Hammarskjold Professor of Law
Rutgers School of Law -- Newark
Carrie Menkel-Meadow
Professor of Law
Georgetown University Law Center
Vanessa Merton
Associate Dean for Clinical Education and Professor of Law
Pace University School of Law
Binny Miller
Professor of Law
American University Washington College of Law
Elliott S. Milstein
Professor of Law
American University Washington College of Law
Joel A. Mintz
Professor of Law
Nova Southeastern University Law Center
Mary Harter Mitchell
Alan H. Cohen Professor of Law
Indiana University School of Law – Indianapolis
William B.T. Mock
Associate Dean for Academic Affairs
The John Marshall Law School
Margaret Montoya
Professor of Law
University of New Mexico School of Law
Scott Moss
Assistant Professor of Law
Marquette University Law School
Gregory S. Munro
Professor of Law and Director of Professional Skills
University of Montana School of Law
Jyoti Nanda
Lecturer in Law
UCLA School of Law
Reta Noblett-Feld
Clinical Law Professor
University of Iowa College of Law
Kimberly E. O’Leary
Professor of Law
Thomas Cooley Law School
Kevin Francis O’Neill
Associate Professor of Law
Cleveland-Marshall College of Law
Daniel Ortega
Research Professor of Law
Director, International Law Programs
University of New Mexico School of Law
Nancy K. Ota
Professor of Law
Albany Law School
Patrick Parenteau
Professor of Law
Director, Environmental and Natural Resources Law Clinic
Vermont Law School
Jeremy Paul
Thomas F. Gallivan, Jr. Professor of Law and Associate Dean for Research
University of Connecticut School of Law
Mark A. Peterson
Clinical Professor of Law
Lewis and Clark Law School
Zygmunt J.B. Plater
Professor of Law
Boston College Law School
Marc R. Poirier
Professor of Law
Seton Hall University School of Law
Malla Pollack
Visiting Associate Professor of Law
University of Idaho College of Law
Daniel H. Pollit
Professor of Law Emeritus
University of North Carolina School of Law
Anne Bowen Poulin
Professor of Law
Villanova University School of Law
Deborah Post
Professor of Law
Touro Law Center
Jamin Raskin
Professor of Law
American University Washington College of Law
Norman Redlich
Dean Emeritus
New York University School of Law
Judith Resnik
Arthur Liman Professor of Law
Yale Law School
Gary G. Roberts
Deputy Dean & Sumter Davis Marks Professor of Law
Tulane Law School
Heidi Gorovitz Robertson
Associate Professor of Law
Cleveland-Marshall College of Law
Reginald Leamon Robinson
Professor of Law
Howard Law School
Toni Robinson
Professor of Law
Quinnipiac University School of Law
Florence Wagman Roisman
Michael McCormick Professor of Law
Indiana University School of Law – Indianapolis
Thomas D. Rowe, Jr.
Elvin R. Latty Professor of Law
Duke University School of Law
Susan D. Rozelle
Assistant Professor of Law
Capital University Law School
Constance L. Rudnick
Professor of Law
Massachusetts School of Law
Herbert J. Sablove
Adjunct Professor of Law
Rutgers School of Law – Camden
Christopher L. Sagers
Assistant Professor of Law
Cleveland State University School of Law
Joyce Saltalamachia
Professor of Law
New York Law School
Kenneth Salzberg
Associate Professor of Law
Hamline University School of Law
Herman Schwartz
Professor of Law
American University Washington College of Law
Elizabeth Semel
Acting Clinical Professor of Law and Director of the Death Penalty Clinic
University of California at Berkeley School of Law
Jeffrey M. Shaman
St. Vincent de Paul Professor of Law
DePaul University College of Law
Peter M. Shane
Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law
Ohio State University Moritz College of Law
Laurie Shanks
Clinical Professor of Law and Director of the Field Placement Project
Albany Law School
Katherine C. Sheehan
Professor of Law
Southwestern University School of Law
Danielle M. Shelton
Assistant Professor of Legal Writing
Drake University Law School
Melvin R. Shuster
Adjunct Professor of Law
Rutgers School of Law – Camden
Marjorie A. Silver
Professor of Law
Touro Law Center
Amy Sinden
Assistant Professor of Law
Temple University Beasley School of Law
Abbe Smith
Professor of Law
Co-Director, Criminal Justice Clinic
Georgetown University Law Center
Ralph S. Spritzer
Professor of Law
Arizona State University College of Law
Norman Stein
Douglas Arant Professor of Law
University of Alabama School of Law
Norman H. Stein
Adjunct Professor of Law
American University Washington College of Law
Joseph L. Stone
Clinical Professor of Law & Director of the Business Law Clinic
Loyola University Chicago School of Law
John A. Strait
Associate Professor of Law
Seattle University School of Law
Mark Strasser
Professor of Law
Capital University Law School
Andrew Strauss
Professor of Law
Widener University School of Law
Beth Stephens
Professor of Law
Rutgers School of Law – Camden
Allen A. Sultan
Professor of Law
University of Dayton School of Law
Kim Taylor-Thompson
Professor of Clinical Law
New York University School of Law
Joseph R. Thome
Emeritus Professor of Law
University of Wisconsin Law School
Adam Thurschwell
Associate Professor of Law
Cleveland Marshall College of Law
Paul R. Tremblay
Clinical Professor of Law
Boston College Law School
Joseph B. Tulman
Professor of Law
University of the District of Columbia David A. Clarke School of Law
Rodney J. Uphoff
Associate Dean and Elwood Thomas Missouri Endowed Professor of Law
University of Missouri School of Law -- Columbia
Georgene Vairo
Professor of Law & William M. Rains Fellow
Loyola Law School
Reynaldo Anaya Valencia
Professor of Law
St. Mary’s University School of Law
Lawrence R. Velvel
Dean and Professor of Law
Massachusetts School of Law
Dominick Vetri
Kliks Professor of Law
University of Oregon School of Law
Adrienne Volenik
Clinical Professor of Law
University of Richmond School of Law
Rachel Vorspan
Associate Professor of Law
Fordham University School of Law
Rhonda Wasserman
Professor of Law
University of Pittsburgh School of Law
Janet Weinstein
Professor of Law
California Western School of Law
Deborah M. Weissman
Professor of Law and Director of Clinical Programs
University of North Carolina at Chapel Hill School of Law
Welsh S. White
Professor of Law
University of Pittsburgh School of Law
Lucy A. Williams
Professor of Law
Northeastern University School of Law
Richard J. Wilson
Professor of Law
American University Washington College of Law
Stephen Wizner
William O. Douglas Clinical Professor of Law
Yale Law School
Mark E. Wojcik
Associate Professor of Law and Director Global Legal Studies
The John Marshall Law School
William J. Woodward Jr.
Professor of Law
Temple University Beasley School of Law
Jennifer L. Wright
Associate Professor of Law
University of St. Thomas School of Law
Jonathan M. Zasloff
Professor of Law
UCLA School of Law
Maryann Zavez
Professor of Law
Vermont Law School
Rebecca E. Zietlow
Professor of Law
University of Toledo College of Law
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Hmmmm. In the letter from The Alliance For Justice there is a quote from Strom Thurmond and an appeal to the Original Intent of the Founding Fathers. Hmmmm. Hmmm. I thought this was what right wingers were suppposed to do!
Well, in dealing with such things as the filibuster, we're getting into the "sausage making" part of law making. Important stuff and grisly at times, but not a constitutional issue, I don't think.
Posted by: Mike Cheek | April 28, 2005 at 02:21 PM
"When all else fails in the democratic polital process, the next resort is to the Supreme Court on a question of constitutionality."
You mention two cases in which the SCOTUS was able to declare legislation unconstitutional. However, in the case of Senate rules, I think the Court would refuse to rule on grounds of justiciability deeming it a political question. Thus claiming the Ct would be the final arbiter is moot - it would never get to the question.
As you are aware, the Constitution requires only "advise and consent", it is up to the Senate to determine the process by which the "advise and consent" takes place. I fail to see how any Court (especially a Rehnquist-Scalia Court) would interfere in this issue to declare a Senate parliamentary rule as constitutional or unconstitutional.
And yes, you rightly point out civil rights legislation as a time when the filibuster was used for a bad purpose. However, it is a tool with a long history. Dems and Repubs have both used filibuster for other uses. David Sirota mentions other times the filibuster has been used including to block appropriations for the Vietnam war and to help farmers on the brink of bankruptcy.
I guess my point is simple: the filibuster is a tool and like any tool can be used for good or bad. Just as I can build a house with a hammer, I can also use the same hammer to crack open a person's skull. My use of the hammer in no way reflects on the goodness or badness of the hammer. It may not be Democratic and I may grant you that... but then I would argue that the Federal Gov't as set up in the US Const is not a true democracy nor was it ever meant to be one. That discussion would be for another day however...
By the way, thanks for the comment response. I enjoy the discussion and, since you ended your original post with a question, I thought it deserved a response. I have your blog bookmarked and read it everyday. I found the site searching for sample Constitutional Law essay questions.
Posted by: Jeff F | April 27, 2005 at 07:40 PM
What a thoughtful comment; thank you very much.
It seems odd that we pay lip service to "the majority rules" principle for the winning of elections, but when the winner wants to have his way, we rebel, using the filibuster.
Granted that other countries, other systems, and ours is not parliamentary, such as Britain's.
Many corporations use a system of "cumulative" voting in which voters (shareholders) are given a number of votes which they can allocate as they wish in order to try to insure at least some representation on the board of non-majority directors.
When all else fails in the democratic political process, the next resort is to the Supreme Court on a question of constitutionality.
The Supreme Court, in Brown v. Board (1954) and Shelley v. Kraemer (1948) trumped the Southern Bloc by declaring unconstitutional segregation in the public elementary and high schools, and racially restrictive covenants in residential deeds. That was the only way around the Southern Bloc and the filibuster at the time.
Now the Democratic liberals are picking up the same filibuster club they so hated half a century ago.
Posted by: rs | April 27, 2005 at 04:25 PM
Granted, the filibuster is a parliamentary tool unmentioned in the Constitution, and like any tool, may be used for good or bad. I believe however that overall, the filibuster is a useful, and because of our system of government, a necessary tool. Here's why...
The filibuster is good because it helps to correct what I see to be the most serious deficiency in our form of gov't: majoritarian rule. The Republican party won the last two Presidential elections by slim majorities: 130,000 votes in Ohio made the differencein 2004, 537 votes in Florida made the difference in 2000.
And, although the (R)'s picked up additional seats in the Senate between 2000 and 2004, Dem candidates actually rec'd more votes nationwide in the Senate between 2000 and 2004. Total votes for Dems: 99,670,071, total for Repubs: 97,300,545.
Now, if we had a Parliamentary system (or at least a multi-party system), one that truly protected minority interests, there would be an argument against the filibuster - and indeed it probably wouldn't be required.
The Republicans in the Senate actually represent a slim minority of the population but through a quirk in our winner-take-all system of gov't they are able to govern as if they represent a commanding majority of the population. Therefore, I am thankful for the filibuster.
Posted by: Jeff F | April 26, 2005 at 12:30 PM