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Sunday, November 28, 2004

In favor of "going nuclear" to end Senate filibusters on judicial nominees

Howard Bashman's How Appealing links to this provocative article in yesterday's Austin American-Statesman headlined "Senate Republicans threaten to go 'nuclear' to end judicial filibusters":

Senate Republicans, boldly confident after their Nov. 2 electoral success, are preparing to end months of frustrating delays over President Bush's judicial picks by hitting Democrats with their ultimate legislative weapon.

But the Republican threat to neuter long-cherished filibuster rules by steamrolling Democrats is risky — so potentially destructive that Capitol Hill calls it the "nuclear option." Democratic retaliation would be swift and long-lasting, raising the prospect of escalating clashes in a body that prides itself on gentility and cool judgment.

Even so, Republican leaders are signaling their intent to go nuclear in word and deed.

"We're going to use every tool we possibly can," said Senate Majority Leader Bill Frist, R-Tenn., who also unveiled a kinder, gentler phrase for the potential rules change: the "constitutional option."

"Republicans are loaded for bear, spoiling for a confrontation with Senate Democrats on judicial appointments," said Norm Ornstein, an expert on Congress for the conservative-leaning American Enterprise Institute. "For a lot of conservatives, this has really become an issue that leaves them passionate."

Democrats, with a new leader after the election defeat of Majority Leader Tom Daschle, D-S.D., have yet to form a filibuster strategy for the 109th Congress, which convenes in January. But early indications show continued passion for blocking nominees considered too conservative, including Texas Supreme Court Justice Priscilla Owen.

"I think they would be making a huge mistake to try to mess with the rules," said Sen. Harry Reid, D-Nev., who will replace Daschle as minority leader. "My position is this: 203 federal judges were approved — 203. Ten were turned down. Does that require any kind of a nuclear option? I would certainly think not."

Thus does Sen. Reid inherit the mantle of disinformation from Sen. Daschle.  Ten nominees weren't "turned down" — rather, they were refused an up-or-down vote that most or all of them would have won on the Senate floor under the majority-vote standard of the Constitution. So what is the "nuclear option," exactly?

The nuclear option would be a last resort if other measures fail, said Sen. John Cornyn, R-Texas, who will likely play a central role in the debate as a member of the Judiciary Committee and chairman of the Constitution subcommittee.

Cornyn argues that judicial filibusters unconstitutionally require a 60-vote supermajority to approve nominees, not the simple majority mandated in the Constitution.

Democrats "must stop not only for the good of the Senate but out of respect to the president, who received almost 60 million votes on November 2, and out of respect for the Constitution itself," Cornyn said. "No group of senators has the right, no minority has the right to tyrannize the majority of the Senate."

The nuclear option would begin with Frist taking the Senate floor to seek a ruling from the presiding officer, likely to be Vice President Dick Cheney in his role as Senate president, to determine whether judicial filibusters violate the Constitution.

Cheney's affirmative response would initiate a vote on changing the filibuster rule, which also would be subject to a filibuster unless Cheney overrules the Senate parliamentarian on whether normal debate rules apply. Then, only 51 votes would be needed for approval.

Another option includes changing Senate guidelines to disallow judicial filibusters, which also would require the Senate president to declare that normal filibuster rules do not apply, so 51 votes could prevail. Changing Senate rules should occur early in the session to gain legitimacy, some Republicans say, making this option potentially less appealing.

Either way, it would be pure power politics, leaving Democrats unable to respond. Other Senate rules, however, would give the minority party plenty of opportunity to express its anger [by jamming normal Senate processes on other legislation] in the months, and years, to follow.

So is this a good thing or not? Before considering that question, there are a couple of important points to consider, one of which this otherwise pretty good article doesn't sufficiently emphasize, and the other of which it doesn't mention at all:

  • First, the point not mentioned: This constitutional drama, if it comes about, will almost certainly take place entirely within the United States Senate — without the meaningful involvement of the judicial branch. If the opponents of the "nuclear option" lose in the Senate, they'll surely bring a court challenge in federal district court. But that challenge will almost certainly be doomed to a swift procedural demise — a dismissal in the district court, affirmed in the court of appeals, and either cert denied or affirmed in the Supreme Court — on grounds that the internal functioning of the Senate is a "nonjusticiable political question" in which the federal courts will defer to the constitutional interpretation of the coequal branch of government as the superior maker and interpreter of its own rules.

  • Second, the point insufficiently emphasized: The "nuclear option," if exercised, doesn't mean the complete end of the Senate's traditional filibuster practice. Rather, it would represent a constitutional response to the past term's historically unique use of the filibuster to categorically block an up-or-down Senate vote on a large handful of the President's judicial nominees. And its rationale — that this use of the filibuster to prevent the Senate from carrying out its constitutionally-mandated advice-and-consent procedure on such nominees is an unconstitutional application of the Senate's internal voting rules on extended debate and cloture to close that debate — does not extend to "garden variety" legislation, even very important and controversial legislation (e.g., on civil rights or abortion rights). The Senate precedent that would be established by the exercise of the "nuclear option" would be limited to judicial nominees.

There's no provision in the Constitution for filibusters, nor, indeed, for the long-standing Senate tradition of (relatively) unlimited debate. It's a tradition, not something that has the force of constitutional law, and it's been modified and restricted in the past — for example, by changes in Senate rules on the number of votes needed to "invoke cloture" (i.e., suspend debate and thus end a filibuster). The federal courts have, should, and will, give the Senate a large degree of independence in writing its own rules, changing them, and interpreting them — recognizing that how the Senate goes about interpreting and performing its own constitutional duties is something for it to decide, without intervention from the executive branch (or than through the Vice President's constitutional role of presiding over the Senate) or the judicial branch.

It is true that in historic practice, the Senate — as the "more deliberative" legislative chamber — has functioned as the political saucer to cool the political hot coffee of the House. That tradition has been an institutional check on the passage of controversial legislation. Whether one views that as a good thing or a bad thing oftentimes depends on one's views on the legislation at issue. But even if one believes that maintaining this institutional check is a desirable and important thing, that's not a good argument against the "nuclear option" with respect to the President's judicial nominees. The Constitution doesn't oblige the Senate, either expressly or impliedly, to bring every proposed bill to an up-or-down floor vote. But I believe that the Constitution's intent is that the Senate has an affirmative duty — and until this past term, the Senate's history has recognized that duty — to actually render its "advice and consent" on the President's judicial nominees.

The Democrats who've obstructed the President's judicial nominees have used the filibuster rules to impose, in effect, an extra-constitutional requirement that the President secure the support of 60 senators to even get an up-or-down floor vote on his judicial nominees. That, in my view, is the radical change that threatens the constitutional process — not the proposed "nuclear option." Sen. Dick Durbin (D-IL)'s recent explanation makes clear just how small a group of Democratic senators claim the right to frustrate the Constitution:

Unless and until every Democrat on the Judiciary Committee votes against a nominee there is no discussion of using a filibuster. What (former Minority Leader) Tom Daschle did and (Minority Leader) Harry Reid is likely to do is to take these issues to the full Democratic caucus and it makes a decision.

If a nominee has one or more Democrat voting for him, then it will not go to a caucus and there is a free vote. It (a filibustered nominee) happened to us 10 times in the last four years, that's out of more than 200 nominations.

In other words, every judicial nominee who's opposed by all of the Democrats on the Judiciary Committee will be filibustered, and that handful of senators will almost certainly ensure that each such nominee will never get an up-or-down vote on the Senate floor. The Democrats on the Judiciary Committee are essentially given a veto over a power delegated by the Constitution to the President, when the Constitution clearly intends that such a veto only be exerciseable by a majority vote of the entire Senate.

It's been given a rhetorically overblown nickname — chosen to suggest that it will blow the Senate apart in some sort of cataclysmic event.  But the only substantive result of having the Vice President rule "constitutionally out of order" the attempt to use the "normal" filibuster-and-cloture rules to block up-or-down floor votes on the President's judicial nominees will be that the Senate will do its constitutional duty: The Senate will indeed render its advice on — and will either consent to or (presumably, still, in some cases) refuse its consent for — the President's judicial nominees.

Yes, I recognize that someday the shoe may be on the other foot, and that then, to my political dismay, it may be a liberal Democratic President submitting judicial activist nominees for consideration by a less-than-60-member-majority of Democratic senators.  But the requirement that a judicial nominee gather an affirmative majority of Senators voting is still a significant institutional check on the President's power — and it's the precise check written into the Constitution, no more and no less.

On balance, I think that the (nonjudicial) precedent that would be set by the so-called "nuclear option" is one that would promote the intended and traditional functioning of our constitutional representative democracy. It isn't revolutionary in itself. Rather, it will lift the revolutionary stranglehold that's currently being used to to confer disproportionate power on a minority of obstructionist, hyperpartisan senators in an attempt to control the composition of the judicial branch in a counter-constitutional manner.

Posted by Beldar at 10:49 AM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to In favor of "going nuclear" to end Senate filibusters on judicial nominees and sent a trackback ping are listed here:

» Defeating Judicial Filibusters: The "Conventional Warfare Option" from Patterico's Pontifications

Tracked on Nov 28, 2004 1:15:27 PM

» New York Times Editors Regurgitate Democrat Talking Points -- Without Even Checking Them Out First from Patterico's Pontifications

Tracked on Nov 28, 2004 7:08:18 PM

» Judicial nominees and the "nuclear option" from Media Lies

Tracked on Nov 28, 2004 7:42:46 PM

» New York Times Editors Regurgitate Democrat Talking Points -- Without Even Checking Them Out First from Patterico's Pontifications

Tracked on Nov 28, 2004 8:23:58 PM

» New York Times Editors Regurgitate Democrat Talking Points -- Without Even Checking Them Out First from Patterico's Pontifications

Tracked on Nov 28, 2004 8:25:16 PM

» Once again Beldar has put english to a complex issue facing America today from Flight Pundit

Tracked on Nov 29, 2004 9:15:14 PM

» WMD are WMD from Stones Cry Out

Tracked on Nov 30, 2004 8:29:08 AM

» The Thursday Morning Politics Roundup from Notes from the (Legal) Underground

Tracked on Dec 2, 2004 5:11:15 AM

» Breaking the Senate Log-Jam from The View From 1776

Tracked on Dec 15, 2004 11:43:53 PM

» End Filibustering Of Judicial Appointees Now from Villainous Company

Tracked on Feb 16, 2005 6:38:39 AM


(1) Steven Jens made the following comment | Nov 28, 2004 10:07:52 PM | Permalink

The Constitution requires that the Senate give its advice and consent, but why should this be interpreted to mean by majority vote, rather than by the rules under which the Senate has chosen to operate?

(2) Dave Schuler made the following comment | Nov 29, 2004 8:52:29 AM | Permalink

Since the change in the rules on the election of the Senate almost a century ago, the Senate has changed from being a moderating influence on a volatile House to being the more radicalized of the two bodies. Whatever happens both political parties should recall that, should majorities in the Senate change, the new majority will get theirs and then some.

(3) SDN made the following comment | Nov 29, 2004 3:04:07 PM | Permalink

Mr. Jenn:

Because the Constitution says that the confirmation is by majority (51) rather than a supermajority. It clearly spells out (as in treaty ratification or impeachment conviction) where a supermajority is required. Senate rules don't trump the Constitution.

(4) Lee Shore made the following comment | Nov 30, 2004 2:09:49 AM | Permalink

Before the filibuster rule was changed 30 years or so ago, to the "dual track" system where a filibuster can go on parallel to ordinary Senate business -- What was the history, if any, of judicial nominations being filibustered?

That is, being filibustered when a filibuster meant having to hold the floor 24/7, as in "Mr. Smith Goes to Washington"?

http://www.c-span.org/questions/weekly19.asp has a good expanation of filibusters, both old fashioned and new. It opines that the dual-track system has led to more filibusters, as it is far easier on the filibusterer than holding the floor.


(5) Rick Brady made the following comment | Nov 30, 2004 8:06:55 AM | Permalink

I've argued on my blog that the Dems unprecedented filibuster of appellate court judges is akin to the use of non-conventional weapons (e.g. bio or chem weapons). Therefore, the appropriate response is nuclear.

(6) ed made the following comment | Nov 30, 2004 2:40:01 PM | Permalink


It's nice talk, but talk for all that. Frankly I've never been impressed by the muscularity of the congressional Republicans. Every single time the Democrats screw'em on some issue the congressional Republicans just roll over and ask for some more.

Orin Hatch and Democrats manipulation of the judicial committee is a prime example.

Give me a yell when congressional Republicans grow a set of balls. Until then, continued comment on this stuff is a waste of time.

(7) Steven Jens made the following comment | Nov 30, 2004 10:50:00 PM | Permalink

The Constitution does indeed clearly spell out, in certain circumstances, that supermajorities are required. The Constitution also spells out that each house of Congress make the rules under which it operates. The Constitution does not clearly spell out that only a majority may be required in any case where a supermajority is not constitutionally required. Again, why should such a rule be inferred?

(8) Jonathan Sadow made the following comment | Dec 1, 2004 3:12:51 AM | Permalink

Beldar wrote

Yes, I recognize that someday the shoe may be on the other foot, and that then, to my political dismay, it may be a liberal Democratic President submitting judicial activist nominees for consideration by a less-than-60-member-majority of Democratic senators.

What should be kept in mind here is that, before George W. Bush became president, this tactic had never been used in the 200+ year history of judicial nominations. It's something the Democrats have pioneered (along with blocking the nominations of candidates given the ABA's highest rating, which also had never happened before). The issue is less a matter of the Senate's advise-and-consent role and more a matter of the churlishness of Senate Democrats who, having lost control of the chamber, are now abusing the chamber's rules trying to make an end-run around the American people's vote of no confidence in them.

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