Filibuster

Dean Erwin Chemerinsky's Views on the Filibuster, Past and Present

Dean Chemerinsky has argued for and against the filibuster on both constitutional and policy grounds.

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As I noted in an earlier post, Dean Erwin Chemerinsky has recently argued in multiple op-eds that the Senate filibuster amounts to an "unconstitutional veto" on legislation and that Vice President Kamala Harris should declare the 60-vote cloture requirement to be unconstitutional in her capacity as President of the Senate. This has not always been Dean Chemerinsky's view, however.

Back in 2004, when Senate Republicans were debating whether to invoke the "nuclear option" to end the filibuster of judicial nominations, Chemerinsky co-authored an op-ed arguing that any such effort to change Senate rules to eliminate the filibuster would be "a cynical exercise of raw power and not based on constitutional principle or precedent." Elimination of the filibuster, he warned then, "would transform the Senate into a rubber stamp." Yet that is precisely what Dean Chemerinsky is arguing for now.

In February 2005, in the Legal Affairs "Debate Club" feature, Dean Chemerinsky considered and decisively rejected some of the same constitutional and policy arguments he now puts forth against the filibuster.

In recent op-eds, Dean Chemerinsky has argued that the filibuster violates the principle of "equal suffrage" in the Senate. Yet in 2005 he argued:

the filibuster, which allows 40 Senators to keep the Senate from ending debate, has existed as part of the Senate's rules since the first days of the Senate. Without the filibuster, 51 Senators reflecting a relatively small percentage of the country's population can pass anything. . . . The filibuster has had the salutary effect of encouraging compromise on divisive subjects, but without it a majority would have no incentive to take minority interests into account. . . .

the filibuster can serve as an important limit on the ability of the minority to impose its will. Because every state, regardless of population, has two senators, Senators reflecting a minority of the population can act. In fact, Senators representing less than a third of the country can be a majority of the Senate. The filibuster counters this by allowing those representing the majority to prevent action.

In response to the suggestion that the filibuster might represent an unconstitutional barrier to democratic lawmaking, Chemerinsky wrote  suggestion he countered:

I think it would be very difficult to reconcile that view with a constitutional provision that expressly allows the Senate to make its own rules. Also, the Court long has said that history has placed a gloss on the Constitution and that a practice which has long existed has a strong presumption of constitutionality. This is certainly true of the filibuster.

As noted above, Chemerinsky is urging the Vice President to simply declare the filibuster to be unconstitutional, which would create the opportunity for the Senate to change the rules by a simple majority vote. Yet in 2005 Chemerinsky wrote:

There is no precedent for amending Senate rules without following the rules. Whenever the Senate has amended its rules it has done so in accordance with its rules. . . .

I do not believe it is a permissible way of changing the Senate's rules. The Senate's rules prescribe the method for such changes. If this rule can be changed without following those rules, any rule can be altered in this way. Never in American history has the Senate changed its rules without following the rules.

Consistent with his 2004 and 2005 position, Dean Chemerinsky argued that Senate Democrats should filibuster the confirmation of Samuel Alito to the Supreme Court in 2006.  (Chemerinsky, Democrats Must Use the Filibuster to Block Alito, The Herald-Sun (Durham, NC), Jan. 29, 2006.)

Dean Chemerinsky likewise argued for Senate Democrats to filibuster Neil Gorsuch in 2017. (Interestingly enough, in between these two nomination fights, Dean Chemerinsky also argued that the Senate had a constitutional obligation to give Merrick Garland's nomination an up-or-down vote.)

Chemerinsky's current position on the filibuster is at odds with the views he articulated during the Bush and Trump Administrations. It is also a little different from the more nuanced position he took in his academic writing in the 1990s.  In 1997, Chemerinsky co-authored an article in the Stanford Law Review in which he argued:

The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.

Then, like now (but unlike in the 2000s), he did not like the filibuster. But then, unlike now, he did not think the filibuster was unconstitutional. Rather, his 1997 article reached the opposite conclusion. The article did, however, also argue that insofar as the Senate rules bar a newly elected Senate majority to change the rules by majority vote, that might unconstitutionally entrench the decisions of past Congresses.

There is nothing wrong with an academic changing his or her mind. My views on many subject have evolved. But when an academic takes the public stage to forcefully argue for a position they have previously rejected, it should be incumbent upon them to acknowledge their change of heart and offer an explanation. Failing to do so leaves one open to allegations that one is being opportunistic or insincere.

[Note: I edited the above to clarify the nature of Dean Chemerinsky's position on the Garland nomination.]

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  1. Chemerinsky’s approach is simple: take the far leftwing’s viewpoint du jour, declare it constitutionally required, and take all other viewpoints and declare them constitutionally prohibited.

    After all, who would argue against the Constitution?

  2. Erwin Chemerinsky is the Lawerence Tribe of Dick Durbins.

  3. I hope Dean Chemerinsky responds to this. I’d like to hear his rationale for the apparent change of heart.

      1. The (political) science evolved again.

  4. I think it would be more interesting to switch to an exception reporting basis, i.e., to find an academic who actually favored principles (any principle) over partisanship. It might be easier to catch a falling star, though.

  5. Its tiresome to keep debating the same lie about the senate not being representative of the population.
    It was never supposed to be. The nation is not a joining of a homogeneous population. It is a confederation of States. States joined together to do together what they could not accomplish on their own. So the Senate is perfectly representative. Each State has the same representation in Washington DC.
    If not for this feature, the Union would most likely not have been formed. If it were such a bad design, States would not have asked to join. States are very much in agreement about the structure of the legislature and the equality of each state have two Senators.

    1. It is also the only provision in the constitution that can not be amended by 2/3 vote and 3/4 of the states.

      Article 5: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

      So even if 2/3 of the Senate and house and 3/4 the states decided to apportion the Senate, to give 10 seats to California, 6 to Texas, 4 to Florida, etc., Wyoming could veto the amendment unless it received 10 senators same as California. If Vermont were happy with one, or even no representation in the Senate the could assent to the change (and looking at their current two senators, they might be better off without any).

      1. So you amend the Constitution to strike that part of Article 5, then it’s Katie bar the door!

      2. Although it actually can be amended — it just takes two steps.

        The first amendment to ratify would nullify the “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” clause.

        Then another amendment changing the Senate in whatever way desired (such as proportional votes by Senators based on the population of the state they represent or moving all Senate responsibilities to the House and eliminating the Senate) could be proposed and ratified.

        I don’t think this is going to happen in the near future because I don’t think three-quarters of the states would agree to the first, let alone second, proposed amendment right now.

        Although, if things continue on their current path, maybe some time in the future three-quarters of the states will be willing to strip California and New York of their “equal suffrage” in the Senate 🙂

        1. “Although it actually can be amended — it just takes two steps.”

          No it can’t. Amendments don’t magically become part of the constitution. Article V says that they’re only valid to all intents and purposes as part of the constitution if no amendment deprives a state of equal suffrage in the Senate. You can’t overcome that no matter how many amendment you make.

          1. That’s right. In addition, it was part of the deal that got the Constitution passed. “We promise never to deprive you small states of equal suffrage in the Senate.” And then turn around and do it.

            Not only is this a 9-0 Supreme Court decision against, but I suspect there were very few SCOTUS justices at any time in this nation’s history who would think that clause can be circumvented.

            1. I disagree. Removing the equal suffrage clause via Article V amendment is analogous to removing the filibuster rule by majority vote.

              What prevents it happening is politics, not law.

              1. No, it’s not. It’s literally the promise that secured states’ consent.

                1. You’re right — it thought the equal suffrage part was in Art I, but it is in Art V.

          2. Where does it say that an amendment can’t impact any or all of Article V? Perhaps the Founders should have included such a restriction, but they didn’t. Perhaps they should have, but didn’t, require three-quarters (or maybe all) states to approve granting statehood to a new entity since that also dilutes the power of the original states.

            Of course amendments can “modify” the “body” of the Constitution. and there are plenty of examples of that.

            For example, 16th Amendment allowed imposition of a national income tax contrary to Article I, Section 9 and the 17th Amendment changed the method of selection of US Senators to election by “the people thereof” rather than being “chosen by the Legislature” of the state as specified in Article I, section 3.

            The “first” amendment I propose does not in any way deprive any state “of its equal Suffrage in the Senate”. Every state would still have the same power in the Senate after adoption of such amendment.

            Perhaps, after adoption of the first proposed amendment, another amendment would be proposed, ratified, and adopted that would give some states more or less power in the Senate, but there would then be no special restrictions on such an amendment.

            Surely you would not argue that, if ratified by three-quarters of the states, an amendment couldn’t change the ratification requirements specified in Article V to require just a majority of states rather than three-quarters.

            Article V clearly states that amendments that are ratified by three-quarters of the states are “valid to all Intents and Purposes, as Part of this Constitution” – and there is no exception to this for amendments to Article V. So, agreed, it’s not “magical” but it is a fairly well defined process.

          3. And I forgot to mention specifically that your claim about the “intents and purposes” language in Article V is not what the text says. It says the amendment upon ratification “shall be valid to all Intents and Purposes, as Part of this Constitution”. That clause is in no way a restriction on the subject or content of the amendment so ratified.

        2. It can be amended. But it requires unanimous consent.

          If every state agrees to be deprived of equal suffrage, it can be done.

          It’s the only kind of constitutional amendment that requires the consent of every state.

    2. But, it’s true. A vote in Wyoming is worth three awful votes in San Fran. The gays would make our country unlivable if they could. They have done that to San Francisco, despite its great wealth.

      1. The filibuster is a veto by a minority of marginally good ideas.

  6. There is no precedent for amending Senate rules without following the rules.

    There is now.

    I do not believe it is a permissible way of changing the Senate’s rules. The Senate’s rules prescribe the method for such changes. If this rule can be changed without following those rules, any rule can be altered in this way. Never in American history has the Senate changed its rules without following the rules.

    Prof Adler does not reveal what the Dean had to say when Harry was doing his thing in late 2013. I’m guessing crickets.

    btw I love all this Law Prof bitching.

  7. Chemerinsky’s current position on the filibuster is at odds with the views he articulated during the Bush and Trump Administrations.

    OMG! I am SHOCKED!

  8. I don’t see the contradiction here.

    In 2005, Dean Chemersky wrote verbiage that, if beleivrd, tended to advance the success od his cause.

    In 2021, Dea Chemersky wrote verbiage that, if beleieved, tended to advance the success of his cause.

    If lawyers were expected to themselves actually personally believe the positions they advocate, many defendents couldn’t get representation, and lawyer’s couldn’t use the same expertise to argue the plaintiff’s side in one case and the defendant’s in another similar one.

    Advocates are instrumentalists. Their legal positions are mere instruments to obtaining a desired concrete outcome. Their success is measured solely in terms of whether the outcome os achieved or not. It’s not like clients are paying them for ivory tower stuff like philosophical niceties. Clients pay them to win. To think thaf the lawyer personally believes the legal arguments being made is simply naive.

    A key element of the Tump revolution, which affects both sides of the political debate, is exactly the acceptance of the sort of pure instrumentalism common in criminal defense and business litigation into public policy discourse. Arguments are measured solely by their ability to persuade people to do what you want them to do. Success, financial and otherwise, is the only measure of value or worth there is.

    1. Whores. I had a little legal training. Instead of attacking my loving correction of the lawyer profession, the geniuses here could say this. Dave, defend the American legal profession. We’ll give you $5. Far more effective than the failed personal remarks. These are signs of intellectual defeat. Not only an amoral whore after the legal training. But a cheap whore.

    2. Lawyers represent clients. Law professors are supposed to advocate for legal changes that they believe are correct or good for the country. If the good professor is now nothing but a shill for a certain ideological position, let him say so.

      1. In both cases, Professor Chemerinsky advocates for positions he thought were good for the country. What else does “correct” mean from the point of view of a Professor Chemerinsky? How coild a position that’s bad for the country be correct?

        1. The Constitution may very well require things that might be bad for the country at times.

    3. He’s purporting to be a law professor, not representing a client.

      If the DNC’s legal counsel took those positions, this would be no scandal at all. But scholars are given special capital by the media and the public, and it’s supposed to be based on some notion that they tell us like it is, not merely what they would like to be true.

      1. The Volokh Conspiracy, especially in its current condition, is a strange forum for that line of argument.

        Two words: Blackman. Blackman.

      2. Once upon a time, Presidents were also thought subject to these types of norms. But they have been in general decline to the point where they seem to be regarded as old-fogie prudery in many circles, prudery that keeps people from enjoying life and getting what they want out of it.

        There’s been a wholesale decline of norms based on on premises that one has obligations to others, including obligations to be consistent. It affects both the right and the left.

        In some ways it’s a bit like the hand-wringing over the decline of moral norms with respect to things like sex outside of marriage.

        People tend to take the positions they think will get them others’ approval. This, too, is a form of instrumentalism. But being intellectually consistent doesn’t seem to be very high on the list of things people approve of these days.

  9. Everything depends on the cause I guess. Whether filibusters are defensible or not, the extent to which broad executive orders are reasonable, whether mass protests cause or don’t cause spread of COVID, whether and which laws should be enforced by the executive, whether judges should get hearings, etc. You’d almost think most people who opine on public policy are unprincipled hacks.

  10. If there is a piece where Chemerinsky defends his change in position and explains it, then Prof. Adler ought to link us to it.

    Otherwise Chererinsky kinda makes an ass of himself, doesn’t he.

    1. Chererinsky is a partisan hack, a very talented and erudite hack, but nonetheless that’s what he is.

      1. Talented, hypocritical partisan hackery seems to be contagious among legal academics from California.

    2. IF there is such a piece.

      However, if there isn’t, how can the Prof. Adler link to it?

      Perhaps he could link to example.com/myflipflops.pdf?

      1. (Dang, no edit function – maybe http://example.com/myflipflops.pdf will work better).

    3. He is auditioning for the next Supreme Court vacancy.

  11. Chemerinsky is right about one thing, that the filibuster is a rule that can be changed or abolished with a majority vote in the Senate. That has already been done by both Harry Reid and Mitch McConnell, but I wouldn’t suggest Kamala Harris try it, best she just wait in the wings if a 51st vote is needed (which may not conform to Senate rules), and not get in over head trying to orchestrate the vote.

    However Chemerinsky is certainly wrong about the filibuster being unconstitutional, there is certainly no role for the courts to get
    involved. Article 1 Section 5: “Each house may determine the rules of its own procedings” settles that question nicely.

    1. Chemerinsky is right about one thing, that the filibuster is a rule that can be changed or abolished with a majority vote in the Senate. That has already been done by both Harry Reid and Mitch McConnell . . . .”

      What was done (first by the Democrats, then by the Republicans) to abolish the filibuster for judicial nominees was an appalling. lawless abuse of power. The chair correctly ruled that the Democrats’ proposal (that Rule XXII provided something other than what it in fact said) was not permissible, and the Democratic leadership moved to overrule the chair. Because it takes a majority rather than a two-third vote to overrule the chair in the Senate, the Dems got their way, but without any more legal justification than if five Supreme Court justices decided that it really sucked that the constitution doesn’t allow states to be deprived of their equal vote in the Senate without their consent, and therefore ruled that a constitutional amendment allocating Senate seats by population was A-OK.

  12. Many people still have not really internaized that, since the internet, prior contrary positions can immediately be found.

    You have to deal with it if you value credibility. Maybe he doesn’t.

  13. Gosh. He should just be consistent and say

    “The Democrats should be able to get a filibuster in the Senate, but the Republicans shouldn’t be able to have one. “

  14. That’s like saying it’s inconsistent to disagree with some tax exemption, even thinking it’s illegal (e.g. a regulation that clearly contradicts the law) and simultaneously making use of it. There is no reason only the other side should make use of the rules you disagree with.

    1. That’s not what is happening here. He isn’t simply counseling Democrats on political strategy.

      If he wrote an op-ed that said “I think the filibuster is constitutional, but VP Harris should pretend that it isn’t because the political stakes are too important”, Prof. Adler’s criticism here wouldn’t have any weight.

      But that’s not what Prof. Chemerinsky did.

  15. The Dean has not just changed his mind. he actually announces a new principle that the President of the Senate can change the rules and declare Senate rules unconstitutional on his/her sole authority.
    In that direction lies tyranny.

    1. Great, now you’ve gone and given Mitch ideas. Anyone want to bet against the Mitchster invoking that such a rule exists for the majority (minority) leader if he is a Republican? Anyone? Didn’t think so.

      1. Actually we have a very recent precedent. The last President of the Senate – Mike Pence – was invited, IIRC, by no less a constitutional scholar than the 45th President, to use those very same Vice Presidential powers that the Dean has just unearthed, to determine which electoral votes were or were not valid in the most recent Presidential election.

        How foolish Pence must now feel, in the light of the Dean’s revelations, about his ignorant demial that he had such powers.

  16. If hypocrisy were outlawed we’d have no government at all.

  17. As Keynes’s said “When the facts change, I change my mind. What do you do, sir?”

    Obviously the facts changed, the Democrats became the majority party, and the filibuster no longer protected them from the Republicans partisan advantage, now it’s the Democrats that have a potential partisan advantage to exploit.

  18. What’s next for this flip-flopping academic from California — could he actually begin to advocate (as part of his work as a ‘free speech champion’ on a self-described “libertarian” blog) that government should begin to control content decisions at social media companies (which he thinks have been mean to his political allies)?

    Sounds crazy, but it could happen.

    1. “that government should begin to control content decisions at social media companies”?

      You mean like the Biden Administration telling FB what posts are “problematic”, and expecting FB to take down those posts?

      That sort of government control of content?

      http://ace.mu.nu/archives/394781.php

  19. Funny, I seem to remember somebody else who recently suggested that the vice president could magically declare something out of existence. That did not go over very well either.

  20. Prof. Chemerinsky taught the Con Law section of my BarBri course in 1988. I passed the bar, so he can’t be totally ignorant of the Constitution.

  21. So Dean Chemerinsky is a hypocritical lying sack of shit, which is to say, he’s a leftist.

    Is anyone actually surprised?

    Did anyone actual think he was a moral or in any way worthwhile human being?

    Why?

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