The watchdog group Common Cause has asked a federal court to find unconstitutional the practice of the Senate filibuster. “A minority of senators representing a minority of the population of the nation can in fact rule with the current system,” said the group’s president, Bob Edgar, according to a Bloomberg article.
A New York Times editorial said the lawsuit “makes some strong historical points, but it may not be necessary.” Senate Majority Leader Harry Reid recently said two senators who had proposed rules last year to rein in use of the filibuster had been right, whereas he was wrong. Reid should lead a reform effort is he continues in January as majority leader, the editorial said.
Emmet Bondurant, a lawyer and member of the Common Cause board of directors, outlined his case for a constitutional challenge of the filibuster in a 2011 scholarly article, according to a Washington Post commentary by Ezra Klein. “Bondurant makes a strong case,” Klein writes.
Jonathan H. Adler writes in The Volokh Conspiracy blog, on the other hand, “I don’t think this suit will go anywhere,” and Adler spells out his legal reasoning. Adler suggested a challenge to nomination filibusters, as opposed to Common Cause’s suit over filibusters against legislation, “is more plausible” given the Senate’s obligation to “advise and consent” on presidential nominations.
Filibusters are one tool that senators have employed to block judicial nominations. Earlier this month, Justice at Stake and 28 other national organizations called for prompt Senate votes on judicial nominations (see Gavel Grab). The groups’ statement said leaders of both political parties must end a chronic gridlock that is thwarting the delivery of justice.
Common Cause is a JAS partner group.