There’s Nothing to Lose: On a Filibuster for Gorsuch

Senate Democrats are seriously considering whether to filibuster President Donald Trump’s nomination of Judge Neil Gorsuch for the Supreme Court. The Republicans—including President Donald Trump—have threatened to change the Senate rules to eliminate the filibuster.

The filibuster has existed since the early days of American history. Few movie images are more endearing than that of an exhausted Jimmy Stewart staging a one person filibuster against corruption in Mr. Smith Goes to Washington. Simply stated, the filibuster enables a minority of U.S. senators to block action favored by a majority of the Senate, the House of Representatives, and the President. The only way the Senate can overcome a filibuster is by a vote of sixty senators to end debate and bring the matter to a vote. Filibusters are so ubiquitous in the contemporary Senate that it is now commonly said that sixty votes in the Senate, rather than a simple majority, are necessary to pass legislation.

Filibusters occur in the Senate, but not in the House, because only the Senate allows unlimited debate on any measure—and no motion exists by which a simple majority of senators can bring a debatable measure to a vote. The only way the Senate can vote on any filibusterable issue over the objection of even a single senator is to obtain cloture (an end of debate) under Senate Rule XXII, which requires the votes of sixty senators.

Little is known about the prevalence of filibusters before the late nineteenth century. Nevertheless, it is clear that 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. The issue had come to a vote once before—the House voted to locate the Capitol in Philadelphia, the Senate voted against it. The issue was so close in the Senate that an ailing senator had to be carried into the Senate on his bed to cast the swing vote. One rainy day, knowing that the ill senator could not be carried in, the Senate backers of the House proposal renewed their efforts. To combat this move, Southern senators who preferred a Capitol closer to home made long speeches and dilatory motions that prevented the vote that day.

Filibusters serve important purposes. They give the minority party a check on excesses by the party in power. Especially, as now, one political party controls the presidency and both houses of Congress, the filibuster can be an important internal check within Congress. They can help protect minorities in society. But, to be sure, they can be used—and often have been used—to block progressive government actions.

Beginning during Reconstruction and continuing for nearly a century, anti-civil rights filibusters played a major role in blocking measures to prohibit lynching, poll taxes, and race discrimination in employment, housing, public accommodations, and voting. The filibuster against the Civil Rights Act of 1964—which prohibits hotels and restaurants from discriminating based on race and forbids employers from discriminating based on race or gender or religion—was unequaled in length and notoriety; it tied up the Senate for 74 days. News coverage of it was also unprecedented: CBS News had Roger Mudd report on the progress of the filibuster from the steps of the Capitol during every newscast.

Senate Republicans also filibustered Barrack Obama’s judicial nominations, especially for the United States Court of Appeals for the District of Columbia Circuit. With no other way to resolve the obstructionism and impasse, Senate Democrats changed the Senate rules to eliminate the filibuster for nominations for federal district courts and courts of appeals and the Cabinet. But the filibuster remains for all else, including Supreme Court nominations and legislation.

It obviously is uncertain whether the Republicans would eliminate the filibuster for Supreme Court nominations if the Democrats were to filibuster Gorsuch. Democrats, though, may well conclude that they have nothing to lose. If they don’t do so, he gets confirmed. If they do and the Republicans eliminate the filibuster, he gets confirmed.

Filibustering Gorsuch would send a message to President Trump and the country: very conservative nominees, who are outside of the judicial mainstream, should not be appointed and will be opposed.


Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law, with a joint appointment in Political Science. He was previously the Alston and Bird Professor of Law and Political Science at Duke University and a professor at the University of Southern California Law School, DePaul College of Law and UCLA Law School. He is the author of ten books and more than 200 law review articles and writes a weekly column for the Orange County Register, monthly columns for the ABA Journal and the Daily Journal, and frequent op-eds in newspapers across the country. He frequently argues appellate cases, including in the United States Supreme Court. In January 2017, National Jurist magazine again named Dean Chemerinsky as the most influential person in legal education in the United States.