Chemerinsky's Changed Tune on Filibusters In yesterday's L.A. Times, law professors Erwin Chemerinsky (Duke) and Michael Gerhardt (William & Mary) argue against Republican proposals to eliminate the availability of filibusters for judicial nominations. This so-called "nuclear option," Chemerinsky and Gerhardt write, would be "a cynical exercise of raw power and not based on constitutional principle or precedent." Elimination of the filibuster "would transform the Senate into a rubber stamp." That's what Chemerinsky says now. But in 1997 -- when there was a Democratic President who found some of his nominees slowed by a Republican Senate -- Chemerinsky sang a different tune. As Patrick Frey documents here, Chemerinsky co-authored a 1997 law review article taking a quite different stance.
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.Indeed, in 1997 Chemerinsky appeared to endorse the view that Senate Rule XXII, which purports to require a two-thirds vote to change the filibuster requirement, is unconstitutional.