With President George W. Bush’s nomination of Judge Samuel Alito to the U.S. Supreme Court, expectations are high of a filibuster by Democratic Senators who believe Alito to be too conservative and polarizing. FairVote believes that now is the time to propose cooperative reforms to our judicial nominations processes. Its new report, Filibuster 2005: Who Represents America?, highlights the perils and pitfalls  of the Senate filibuster for both Democrats and Republicans, while highlighting proposals to reduce the increasing bitterness and acrimony over Presidential nominees.

Key conclusions in the report that highlight the need for bipartisanship include:

Why Republicans Should Beware: GOP Overrepresentation in the Senate- Though the Republicans hold a majority of seats in the U.S. Senate, they in fact do not represent a majority of voters in the U.S. Senate elections that elected them. A comparison of the number of votes received by the elected Republican and Democratic Senators highlights this point. This simple fact undermines claims by the Republican Party to represent the interests of most Americans on nominations to the high court. For example, in the current 109th Congress, the sitting Democratic Senators received the votes of 61 million Americans, while the sitting Republican Senators combined only received the votes of 58 million Americans. In spite of this, the Democrats received less seats than the Republicans, even though their Senators received millions more votes. This partisan skew in our Senate elections in states with unequal populations calls into question who represents America, while providing a clear argument for the President and Senators to use judicial nominations procedures that promote more consensus.

Why Democrats Should Beware: A Possible “Tyranny of the Filibuster Minority” – In spite of Democratic under-representation in the Senate, on both sides of the aisle, filibusters threaten to undermine fair representation of America’s views. A comparison of the number of votes received by each party's sitting Senators with the total number of votes cast for all Senate candidates, whether they won or not, highlights this point. Since it only takes 40 senators to initiate a filibuster, that means that if Democrats were to filibuster in the current Congress, the 40 lowest vote-getting Democrats would be able to unilaterally mount a filibuster against the remaining 60 Senators while only having received the support of a dismal 20.58% ofall votes cast in Senate elections and 33.75% of all votes cast for the winning candidates. Hence, though a larger group of Democratic Senators could theoretically represent a filibuster majority in the current Senate, the reality is that using the procedure, a much smaller group of voterscould create a tyranny of the filibuster minority. In fact, such a scenario has in the past blocked critical civil rights legislation.

According to FairVote Executive Director Rob Richie: “Before a meaningful discussion can happen over the fairness of a filibuster, the conversation must first begin about the basic fairness of representation in the Senate and how our elections create incentives for partisan bickering. We then must move to implement innovative solutions that promote more cooperation across party lines.”

In the report, FairVote highlights creative proposals to reduce partisanship in court nominations, including nominating judges in bipartisan slates and creating fixed terms.            

Proposal 1: Federal Judicial Term Limits: Rather than appointing judges for lifetime terms, judges would serve one term that might last between 15 and 25 years (with the period being based on experts’ views on what would give judges sufficient time to grow in their thinking and still free them from the shifting short-term political winds). Lifetime appointments cause a panic amongst partisans who fear indefinite reigns of power from ideologically charged judges. The current system also creates incentives for ideological judges to hang onto power until their favored party can appoint their successors.

Proposal 2: Slate Nominations for District and Court of Appeals Judges: Reforming the nominations process for federal District and Court of Appeals vacancies would go a long way toward reducing partisan bickering about judicial nominees. Under this system judicial vacancies at any given point in time would all be filled at the same time, with the Senate voting on whether to confirm the entire slate of proposed judges as a group, rather than one at a time. While this system would not work for Supreme Court nominations, it would be highly effective for District Court and Court of Appeals nominees, where a great degree of partisan acrimony could be avoided in the future. The President and his/her party would nominate most of the judges on the slate, while the minority party would nominate a smaller portion of the judges. The exact percentage of nominees made by each party could be a fixed percentage or could be made to shift with the composition of the Senate. The two party's nominees would then be combined into the unified slate that the full Senate would then vote on. This would potentially create incentives for the two parties to work together on creating an overall slate of nominees who are acceptable to the full Senate, rather than having both sides merely pander to their bases.

FairVote is a non-profit, non-partisan organization that studies the impact of electoral rules and systems on turnout, representation and electoral competition. Its president is John B. Anderson, former Congressman and presidential candidate. For comment please contact FairVote’s executive director Rob Richie and program director David Moon.

To view the entire Filibuster 2005 report, visit http://www.fairvote.org/filibuster.