Judical Filibusters: Advice and Consent

Senate Minority Leader Harry Reid (D-NV) says he has other "pressing business" and is annoyed that President Bush has re-nominated appellate court nominees who have been filibustered. He and other Democrats intend no letup in their misguided strategy.

But judicial filibusters are a constitutional blunder. Prior to this last Congress, a judicial filibuster was attempted only once, when LBJ tried to elevate Abe Fortas to be chief justice. Whether the debate over Fortas was a filibuster is an open question, but when he withdrew, he likely lacked majority support in the Senate.

What's happening today is entirely different. President's Bush's appeals court nominees do have majority support in the Senate. What they are being denied is a vote of the full Senate because of a constitutionally questionable Senate rule requiring 60 members to cut off debate (to end a judicial filibuster).

This contradicts what the framers anticipated. The Senate's advice and consent, Hamilton reasoned in Federalist Nos. 76 and 77 would be exercised "by the whole body, by [the] entire branch of the legislature."

Obstructing judicial nominees with majority support thwarts the president and exacerbates the increasingly heavy workload of the independent judiciary. Anyone whose life, liberty or property is at issue before a federal tribunal is a potential filibuster victim.

The Constitution allows the Senate to set its own rules. Yet, this rule-making power is not unlimited. The Senate could not adopt a rule categorically excluding women or African-Americans or Catholics from serving on the federal bench. The Bill of Rights would rightly trump such bias. And while there is no similar trump expressly denying judicial filibusters, the supermajority rule is nevertheless constitutionally deficient for one simple reason: this Senate -- the 109th -- has never adopted it.

The 60-vote cloture rule is a carryover from a previous Senate and merely imposed on the present body. Every two years, the Senate's composition changes as one-third of its membership stands for election. An ever-enlarging group of senators, led by John Cornyn (R-TX), has rightly asked why they, as more recently elected members, have never had a say over Senate process.

According to the present Democrat leadership, the new guys are just out of luck. You see, they say, rule changes require 67 votes. And where did that rule come from? Yep, it, too, comes from a previous Senate. And so it goes. New senators are elected, but they are stuck with old rules effectively denying their representational voice.

This cannot be, and is, not the law. An unbroken chain of Supreme Court rulings anchored in English common law as venerable as Sir William Blackstone provides that "every succeeding Legislature possesses the same jurisdiction and power… as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."

Senate Democrats have disregarded this ancient precept and are operating outside the Constitution. Of course, Senator Majority Leader Bill Frist is contemplating (gasp) asserting the prerogative of a majority of the existing Senate to change the carryover rules to allow a similar majority to exercise the power of advice and consent. Derisively, Democrats have dubbed this "the nuclear option," but in truth, it is the constitutional one.

And don't just take my word for it. Consider the following:

"[T]he members of the Senate who met in 1789 and approved the first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate."

Or: "By what logic can the Senate of 1917 or 1949 or 1959 bind the Senate of [today]... The immediate issue is whether a simple majority of the Senate is entitled to change Senate rules… [I]t is clear that this question should be settled by a majority vote."

Or simply: "[Senate rules] could be changed by majority vote."

The authorities: Sen. Robert Byrd (D-WV), the dean of Senate procedure and author of a magisterial history of the Senate on the Senate floor in 1979; Sen. Edward M. Kennedy (D-MA) on the floor in 1975; and Sen. Charles Schumer (D-NY) in colloquy with me before the Senate Judiciary Committee in 2003.

Nuclear option, indeed. Send Dick Cheney over to the Hill to preside over a majority-passed rule amendment restoring the right of a simple majority to close debate on judicial nominations. And then the Senate can go on to that other "pressing business" of Sen. Reid. And since some of that business may soon include consideration of a Supreme Court nominee, better to get the rules straight -- and constitutional -- now.