THERE IS NO INNOCENT PARTY—Republican or Democrat—in the Senate’s war over two of President Bush’s nominees to the federal bench.
Republicans claim that filibustering Democrats are unconstitutionally blocking the Senate from confirming Miguel Estrada and Priscilla Owen. They’re wrong. Democrats, pointing out that more than 100 of Bush’s nominees have been confirmed, say it is improper to limit debate in the Senate. But it’s been done before.
Today’s stalemate over the confirmation process follows at least two decades of conflict over the president’s choices for the lower federal bench, conflict that has been stoked in part by the growing polarization of the parties in Congress. The battles have escalated with the Democratic filibusters, but Democrats are not the first to obstruct judicial nominees. Controlling the Senate Judiciary Committee for much of the Clinton administration, Republicans blocked scores of judicial nominees by refusing to bring them up for a vote in the committee. And both parties have used anonymous "holds" and Judiciary Committee "blue slips" to prevent nominees from going forward in the past.
Such intense partisan debate reminds us of a simple fact. Small Senate majorities do not like the filibuster. This was true in the mid-20th century, when liberal Democrats saw civil rights and other measures blocked by Senate minorities. In recent decades, after Republicans began winning majorities in the Senate, conservative Republicans have complained most frequently about the filibuster. Republican leader Bill Frist (R-Tenn.) now offers a proposal to ban the filibuster on nominations, a proposal Republican leaders surely would have opposed for decades.
Democrats counter with an old argument of the Republicans: the Framers of the Constitution intended the Senate to be a deliberative body that protected the right of extended debate, and thus it is wrong to limit the filibuster.
The Democrats have two good reasons for refusing to rubber-stamp the president’s nominees. First, federal judges hold their appointments for life. Second, the federal courts increasingly make the law, rather than interpret it. So close scrutiny of a nominee’s policy views is certainly appropriate.
But reform of the confirmation process is essential for securing more reasonable and equitable treatment of potential judges, whether nominated by Republican or Democratic presidents. Such reform ought to proceed with arguments that do not distort the Constitution or fabricate Senate history. To that end, here are the facts about the Senate and its history of extended debate:
Right to extended debate
The Constitution allows the Senate to establish supermajority requirements. Article 1, section 5, provides that "each House may determine the rules of its proceedings." Such requirements may be troublesome for the Republican majority, but the Senate clearly has the constitutional authority to create and enforce supermajority rules.
Still, this does not mean no reform is permissible. The right to extended debate was not created until 1806, when the Senate cleaned up its rulebook and dispensed—probably by mistake—with the rule that allowed a majority to limit the debate. Filibusters did not begin in earnest until the newly formed Democratic and Whig parties formed several decades later.
Filibusters against nominees are constitutional. Some Republican senators have claimed that filibusters of nominees are unconstitutional because they prevent the Senate from fulfilling its obligations to advise and consent. In fact, and quite remarkably, the Constitution does not specify that a majority of any sort is required for confirmation, or even for passing laws. The Framers most likely had such a requirement in mind, but the Constitution does not address it. No reading of the Constitution can support the idea that filibusters are unconstitutional.
There is precedent for banning the filibuster. Periodically, the Senate has chosen to impose debate limits on important bills. "Fast track" for trade bills ban the filibuster and a wide range of laws (from arms export control laws to marine sanctuary protections) limit debate. In proposing a ban on filibustering judicial nominees, Frist may simply have found another special purpose for limiting debate.
We favor a better balance between debate and decision. First, it is reasonable to expect that nominees will receive a vote in committee, and it is also reasonable to impose a deadline on the committee—say, 120 days—to guarantee action. This would give senators ample time to explore the nominee’s views, but would prevent the majority from bottling up nominees in committee during periods when the president’s party does not control the Senate.
Second, we favor a proposal similar to Frist’s that would change the 60-vote requirement for invoking cloture. Over a two-week period, the number of votes required for cloture would fall from 60 to 57 to 54 and finally to 51. We would couple this change with an increase in the number of days that must pass between the filing of and voting on cloture motions.
All together, including additional post-cloture debate time currently provided under Senate rules, a minority could delay action for up to 16 days. With more than two weeks of full-time Senate debate under this proposal, it would be hard to argue that senators have not had ample time to debate and educate the public.
Rule change unlikely
Will we see such reforms in the Senate in the near future? Probably not. One rule about Senate rules is that they are difficult to change. Ending a filibuster on a resolution to change the rules requires a two-thirds majority. Consequently, no change in the rules is likely unless most senators believe the change will serve their interests. Absent pressure from the public and the president, minority party senators are unlikely to feel the heat necessary to support reform.
The danger is that Republicans might resort to a back-door procedural scheme—a bit of trickery known as "going nuclear"—to prevent Democrats from filibustering nominees. This would only increase partisan rancor and will encourage Democrats to block all action in the Senate. As Democrats learned from years of experience when Republicans obstructed the Democrats’ agenda, the public typically holds the majority party responsible when obstructionism occurs. Only if Republicans can generate Democratic support for changing rules should reform of the process proceed.
This is but par for the course in the history of the filibuster. All senators understand the value of the filibuster to their party’s and their own political and policy agendas. If Democratic leaders are able to judge public sentiment and the intentions of fellow senators, then they will know how far they can obstruct the confirmation process without fear that they will motivate more of their colleagues to support a change the rules. The Democrats, it seems to us, have gauged the situation just about right.
Sarah A. Binder is a senior fellow at the Brookings Institution and an associate professor of political science at George Washington University. Steven S. Smith is a social sciences professor at Washington University in St. Louis and the Director of the Weidenbaum Center on the Government, Economy and Public Policy. Binder has just published "Stalemate" (Brookings 2003) and together they have written "Politics or Principle? Filibustering in the United States Senate" (Brookings 1997).