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Constitutional interpretation should not be any harder than it has to be. When the Constitution is clear, we should acknowledge its clarity. And there are two clear sources of constitutional authorization for the filibuster — the text of the Constitution and historical practices. First, Article I, Section 5 expressly provides, “Each House may determine the Rules of its Proceedings.” Article I, Section 5 is crystal clear. It plainly authorizes the Senate to make procedural rules, including but not limited to the length of debate in the Senate. The same constitutional authority empowers the Senate to make numerous delegations to smaller units (and even individual members) within the Senate. Many of these delegations allow committees and their chairs to have final say over the fates of legislation and nominations. . . . The textual authority for the filibuster are precisely the same as those for all of these other measures. If these measures are constitutional (and no one, at present, seriously questions their constitutionality), then so too is the filibuster. Historical practices support the constitutionality of the filibuster even more strongly than does the text of the Constitution. For more than two centuries, the Supreme Court has emphasized the relevance of historical practices for determining the legitimacy of some contested action. The filibuster, in one form or another — understood as the prerogative of an individual senator or a small set of senators to engage in protracted, if not endless, debate to defeat some legislative action — has been employed in the Senate since 1790. As the leading legal scholars on the filibuster have noted, “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.” . . . [T]he Senate approved a curb on the practice in 1917, after 11 senators had successfully filibustered President [Woodrow] Wilson’s proposal to arm American merchantmen against German submarine attacks. The Senate passed, at President Wilson’s urging, Rule 22, which allows debate upon a “pending” matter to be terminated after a petition for such “cloture” [is] presented by 16 senators and approved by two-thirds [later changed to three-fifths] of the senators present and voting. In subsequent years, senators from both parties have used the filibuster to block a remarkably wide range of legislative actions with which they have disagreed. Indeed, during the period from 1927 through 1962, the Senate did not vote cloture once. . . . Moreover, the filibuster has hardly been confined to legislation. It has frequently been used to thwart presidential nominations. Indeed, a Congressional Research Service study indicates that from 1949 through 2002, senators have employed the filibuster against 35 presidential nominations, on 21 of which senators had sought and invoked cloture. Seventeen of the 35 nominations filibustered were to Article III courts. . . . In spite of the clear textual and historical support for the filibuster, its legitimacy has been questioned. . . . The first argument against filibusters is that they are not among the specific instances of supermajority voting requirements recognized in the Constitution. The Constitution specifically requires a supermajority vote in only seven situations. This enumeration of the instances where a supermajority was required suggests to some that the Framers assumed that a simple majority vote in each chamber would suffice for all [other] congressional action. . . . An equally, if not more, plausible reading of the text is that it requires supermajority voting in at least the seven specified instances, but leaves Congress with the discretion to decide voting procedures in other situations. . . . The second, perhaps most common argument against the filibuster is that it violates majority rule in the Senate. This argument is predicated on reading several provisions of the Constitution as establishing majority rule as an unalterable principle to govern Senate voting. . . . Yet a sensible reading of these provisions does not establish majority rule within the Senate as a fixed principle in all but a few instances demarcated by the Constitution. At most, these provisions establish majority rule as the default rule in the absence of any other procedure. . . . Some opponents of the filibuster insist nevertheless that majority rule applies with respect to not only legislation but also nominations. The argument is that the appointments clause entitles the Senate to give its “Advice and Consent” to presidential nominations and that the filibuster bars a majority of the Senate from exercising this prerogative. . . . . . . [But this] suggested construction of the appointments clause would lead to absurd results. The suggested reading of the appointments clause would render unconstitutional any action by a committee or individual senator (including the Senate majority leader) that had the effect of nullifying a judicial nomination. On this reading, committees lose all their traditional powers as gatekeepers for nominations or any other legislative business that a majority might be disposed to approve. The majority leader presumably would be required to forward to the Senate floor each nomination that the president makes, regardless of what happened in the committee. In addition, this reading of the appointments clause would render unconstitutional temporary holds, which have been used routinely to delay final consideration of legislation and nominations. Temporary holds near the end of a legislative session can often be fatal: Delay a nomination just long enough near the end of a session, time runs out for the Senate to act, and the nomination lapses. . . . The third argument directed against the constitutionality of the filibuster is that Rule 5, which requires a supermajority vote to alter or abolish the filibuster, is unconstitutional. The argument is that Rule 5 impermissibly entrenches the filibuster, i.e., the supermajority vote required to alter or abolish the filibuster allows a current Senate to deprive a future majority within the Senate [of the ability] to choose the rules — including those governing the filibuster — under which they prefer to operate. This argument, too, is seriously flawed. First, it has been flatly and repeatedly rejected in the Senate’s precedents and practices. . . . The Senate has consistently opposed efforts to allow amendment of its rules by majority vote; and the only rule changes recognized by the Senate as legitimate have been effected by supermajority vote. . . . Second, there is no constitutional directive against entrenchment. . . . The leading commentary on entrenchment by Professors Eric Posner and Adrian Vermeule of the University of Chicago Law School . . . directly expose[s] the fallacy of attacking Rule 5 on the ground that it constitutes impermissible entrenchment. “[T]he anti-entrenchment objection to the cloture rule is really a wholesale objection to constitutionalism as such. In a binding constitutional order, neither the future legislative majority nor the underlying electorate has any general ‘right . . . to rule according to its will.’ ” . . . . . . In any event, Rule 5 implements the sound practice that the pre-existing rules of the Senate remain in effect and can be changed only in accordance with the rules themselves. (Otherwise, each new Senate would lack any rules for proceeding at the outset of a session, which would be a recipe for chaos.) Consequently, senators would be empowered to filibuster any attempt to amend the rules that was not done in accordance with their understanding of the governing rules. The filibuster . . . is clearly authorized by the Senate’s power to adopt rules for its proceedings and by its consistent use, in one form or another, throughout the Senate’s history. The fact that the filibuster has been used, more than once, against judicial nominations does not detract from its legitimacy. For there is no constitutional entitlement of a majority of senators to exercise their will on every nomination with which they approve. If the majority’s will is frustrated, the president and those who have supported his contested nominations can either exact revenge through the political process or seek common ground to resolve their differences with a substantial minority of their colleagues. Whichever path they follow is constitutional, just as constitutional as the filibuster itself. Michael J. Gerhardt is the Hanson Professor of Law at William & Mary School of Law. Former dean of Case Western Reserve University School of Law, Gerhardt served as special consultant to the White House counsel’s office for the confirmation of Justice Stephen Breyer.

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