Protecting Minority Rights and the Filibuster in the U.S. Senate

Resolution Adopted by the CCAR


Adopted by the 116th Annual Convention

of the Central Conference of American Rabbis

Houston, TX

March, 2005


According to the Shulchan Aruch, there are seven qualities that judges should possess: wisdom, humility, fear of God, disdain for ill-gotten money, love for the truth, esteem of their fellow men and a good reputation. (Hoshen Mishpat 7) Further, "a judge should be deliberate in arriving at his decision. He should think the matter through thoroughly and should render his decision only when it is perfectly clear to him. He should not act with undue haste." (Hoshen Mishpat 10).

Jewish law outlines very specific guidelines for judicial qualifications in order to preserve the respect and credibility necessary for the court to maintain its integrity and the vital role it fills in society. Similarly, those empowered to select judges are obligated to choose wisely: "One who appoints a judge who is not worthy, or who is not wise in the knowledge of Torah or who is ineligible to be a judge, transgresses the negative commandment .You shall not respect persons in judgment. (Deut. 1:17)" (Hoshen Mishpat 8).

The current debate in the U.S. Senate regarding the use of the filibuster arose over these very concerns. The leadership of the U.S. Senate has proposed that Rule XXII of the Standing Rules of the Senate be amended to prohibit filibusters on judicial nominees, including those to the Supreme Court. Frustrated that the minority has successfully used the filibuster to prevent confirmation votes on 10 federal court nominees in the 108th Congress, the Majority Leader has suggested that it is unconstitutional to employ the filibuster against judicial nominees.

The filibuster has been employed since the first Congress and reflects the Senate.s traditional concern for the minority. Article I, Section 5 of the U.S. Constitution grants the Senate the power to "determine the rules of its proceedings." Rule XXII sets up the process for ending filibusters through a cloture vote requiring a supermajority of three-fifths or 60 votes to shut off debate. Prior to 1975, cloture required a two-thirds vote.

The CCAR opposed the abuse of the filibuster in the 1950.s when it was used by legislators to prevent the passage of civil rights laws and bar equal rights to all citizens. Since that time, the bar for cloture has been lowered, reducing misuse of this procedural tactic. In the current environment, the filibuster is a critical tool for those who would uphold judicial standards, prevent "court packing" and bar the most extreme jurists from the federal judiciary.

In the 108th Congress, where over 200 federal court nominees were confirmed, the Senate minority utilized the filibuster to prevent confirmation of only ten nominees who were deemed, based on their records and views, out of the mainstream of American jurisprudence. Some of these nominees were opposed by the Union for Reform Judaism and the Central Conference of American Rabbis based on their opposition to reproductive rights, church-state separation, and other core principles of concern to the Reform Movement.

Concern about the proposed restriction on the filibuster crosses political and ideological lines. According to George Will, in a December 6, 2004 Newsweek column: "The filibuster is an important defense of minority rights, enabling democratic governments to measure and respect not merely numbers but also intensity in public controversies."

Eliminating the filibuster as a procedural recourse for the minority in confirmations of individuals to life-time seats on the federal courts threatens to result in court-packing by the majority party. In addition, it may prove the slippery slope that could result in the end of the filibuster altogether.

Therefore, the Central Conference of American Rabbis resolves to:

  • Oppose Senate rule changes that would eliminate the option to filibuster judicial nominations;

  • Oppose legislation or other procedural changes that would eviscerate the rights of minorities in the Senate; and

  • Educate our constituencies and the public on the judicial nominations process, the problems posed by altering relevant Senate rules or procedure and the importance of preserving minority rights in this legislative body.