Abstract

http://ssrn.com/abstract=895605
 
 

Citations



 


 



The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty


John O. McGinnis


Northwestern University - School of Law

Michael B. Rappaport


University of San Diego School of Law


Supreme Court Review, 2006
San Diego Legal Studies Paper No. 07-40
Northwestern Public Law Research Paper No. 895605

Abstract:     
In this essay, we explore the effects of the application of the filibuster to judicial confirmations. We conclude that the judicial filibuster has fundamental implications for both the composition of the courts and nature of constitutional law. If employed, the filibuster will change the kind of judges who are confirmed and so over time reshape the Supreme Court itself.

We argue that the filibuster will lead to more moderate judges. With the help of spatial models from the political science literature, we contend that supermajority confirmation rules, of which the filibuster rule is an example, will tend to make justices more moderate, where moderate means having a jurisprudential view closer to the view held by the median Senator. We thus identify an apparent paradox that a supermajority rule for judicial confirmation actually furthers the views of the legislative majority.

We also analyze the Filibuster Deal, an agreement of 14 moderate Senators designed to preserve the filibuster. We contend that the deal furthered the political self-interest of this group, because the filibuster generates the appointment of the moderate judges that these Senators support. We also make predictions about how the key terms in the deal will be interpreted.

Our argument that the filibuster rule generates more moderate judicial appointments also suggests that the rule will temper the countermajoritarian difficulty - the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches. We maintain that a supermajority confirmation rule that generates appointments that accord with the median senator's view is also more likely to produce judges who act based on a majority of the public's view of judicial review. In this way, judicial review would be more likely to impose the limitations on popular government that a majority of the people desire. In developing this argument, we unpack the countermajoritarian difficulty into three components - jurisprudential, temporal, and confirmational.

Finally, we use our framework to explicate other important features of the confirmation process. We show that the presence of a filibuster rule will lead the President to select more stealth nominees, but that such nominees will still tend to be more moderate than those nominated under majority confirmation rules. We also show that whether a filibuster occurs will depend on a variety of factors; that nominees for the court of appeals are more likely to be filibustered than the Supreme Court nominees; that filibusters are more likely toward the end of the President's term; and that the decision whether to filibuster a nominee will depend on expectations about future nominees and the type of reputation the Senate minority wants to develop.

Keywords: supermajority rules, filibuster, judicial appointments

JEL Classification: K1

Accepted Paper Series





Not Available For Download

Date posted: April 8, 2006  

Suggested Citation

McGinnis, John O. and Rappaport, Michael B., The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty. Supreme Court Review, 2006; San Diego Legal Studies Paper No. 07-40; Northwestern Public Law Research Paper No. 895605. Available at SSRN: http://ssrn.com/abstract=895605

Contact Information

John McGinnis
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
312-503-3235 (Phone)
Michael B. Rappaport (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,620

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.312 seconds