The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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, 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.]