Dean Erwin Chemerinsky’s Views on the Filibuster, Past and Present
As I noted in an earlier post, Dean Erwin Chemerinsky has recently argued in multiple op-eds that the Senate filibuster amounts to an “unconstitutional veto” on legislation and that Vice President Kamala Harris should declare the 60-vote cloture requirement to be unconstitutional in her capacity as President of the Senate. This has not always been Dean Chemerinsky’s view, however.
Back in 2004, when Senate Republicans were debating whether to invoke the “nuclear option” to end the filibuster of judicial nominations, Chemerinsky co-authored an op-ed arguing that any such effort to change Senate rules to eliminate the filibuster would be “a cynical exercise of raw power and not based on constitutional principle or precedent.” Elimination of the filibuster, he warned then, “would transform the Senate into a rubber stamp.” Yet that is precisely what Dean Chemerinsky is arguing for now.
In February 2005, in the Legal Affairs “Debate Club” feature, Dean Chemerinsky considered and decisively rejected some of the same constitutional and policy arguments he now puts forth against the filibuster.
In recent op-eds, Dean Chemerinsky has argued that the filibuster violates the principle of “equal suffrage” in the Senate. Yet in 2005 he argued:
the filibuster, which allows 40 Senators to keep the Senate from ending debate, has existed as part of the Senate’s rules since the first days of the Senate. Without the filibuster, 51 Senators reflecting a relatively small percentage of the country’s population can pass anything. . . . The filibuster has had the salutary effect o
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