This Battle Isn’t New: The Filibustering of Judicial Nominations

The U.S. Senate is on the brink of parliamentary war over Democrats’ filibusters in the last Congress against 10 presidential nominations to the federal appellate bench. Decrying Democrats’ tactics as unconstitutional, Senate Majority Leader Bill Frist has threatened to ban judicial filibusters by majority vote, a procedural move dubbed the “nuclear option” since it would invite massive retaliation by Democrats.

Our reading of the Constitution and the Senate’s parliamentary history leads us to two blunt conclusions. First, filibusters of judicial nominations are plainly constitutional and come on the heels of years of Republican success in blocking votes on President Bill Clinton’s judicial nominees.

Second, Republicans should be careful what they wish for. Republicans claim they can launch a surgical strike against Democrats by banning only judicial filibusters. In fact, the move will be nuclear – not only for the Democrats, but for Republicans and the institution of the Senate.

Citing the Constitution’s “advice and consent” clauses, Frist and other prominent Republicans argue that the Senate is obligated to cast a vote on a presidential nomination to the federal courts. Because the Constitution does not stipulate a supermajority vote for confirmation, Republicans contend that requiring any threshold greater than a majority vote for confirmation is unconstitutional. Under the Senate’s Rule 22, 60 votes are required to cut off debate on a pending nomination and to bring the Senate to a vote on confirmation. Republicans find this blatantly unconstitutional, since it raises the de facto threshold for confirmation to a supermajority of the Senate’s 100 members.

Republicans’ constitutional reasoning ignores critical features of the Constitution. The framers of the Constitution provided clear instructions in Article 1, Section 5 that each chamber would be empowered to write its own rules. Except for the seven instances for which the Constitution stipulates supermajorities for passage, the rule-making clause applies. The Senate can set whatever rules it wishes for carrying out its responsibilities of advice and consent. Requiring supermajorities to end debate on nominations is certainly constitutional. After all, the Senate requires only a simple majority for the actual vote on confirmation.

Democrats did not invent obstruction of judicial nominations. Today’s battles follow at least two decades of conflict fueled by the growing polarization of the core constituencies of the two parties and by the rising importance of the federal courts. Republicans were equally adept at blocking Clinton’s nominees, using their control of the Senate Judiciary panel to block over 60 percent of his appellate bench choices in his last two years. Senators of both parties have used anonymous holds and other means to prevent nominees from going forward. And in 1968 Republicans blocked a vote on the nomination of Abe Fortas for chief justice of the Supreme Court.

Troubled by Democratic filibusters, Republicans initially advocated changing Rule 22 to gradually ratchet down the number of votes required to end debate. But efforts to reform Rule 22 can be filibustered, and it takes a two-thirds majority to end debate on resolutions relating to the rules. Even with 55 Republicans in the new Congress, it seems likely that the Democrats can block a new rule.

Frist now warns Democrats that Republicans may proceed by majority vote to change the rules. The parliamentary machinery would look something like this: A Republican would make a point of order that the Constitution’s advise and consent clause implies that the Senate is obliged to vote on judicial nominations. The presiding officer, potentially the vice president, would rule in favor of the point of order. When appealed to the Senate, a motion that is debatable under Senate rules, a motion to table would be advanced by Republicans to quash the appeal and sustain the ruling. Motions to table cannot be filibustered, which means that a simple majority could table the appeal and uphold the ruling. The result would be majority cloture by fiat of a simple majority, at least for the range of matters addressed in the ruling.

Makes little sense

Republicans maintain that their surgical strike against the filibuster will apply only to judicial nominations. Their argument that judicial nominations are a special class makes little sense. If the Constitution implies a Senate obligation to vote on judicial nominations, then it implies a Senate obligation to vote on all matters explicitly mentioned in the Constitution’s two “advice and consent” clauses – all presidential nominations and treaties (what the Senate calls “executive business”). Choosing to limit the ruling to judicial nominations guarantees that in the very near future senators will attempt to extend the precedent to all executive business.

Nor can the mechanism proposed by the Republicans be readily limited to executive business. On constitutional grounds, as has been argued in the past, senators might argue that the Senate’s constitutional power to make its own rules applies to each new Congress and that traditional parliamentary law, not the Senate’s rules of the last Congress, govern until new rules are adopted at the start of a new Congress.

The reform-by-fiat approach is not likely to be limited to procedural matters arising under express provisions of the Constitution. The track record of the Senate on other procedural rulings suggests that majorities will be enticed to ease down the slippery slope of reform-by-fiat to rules that implicate the Constitution only remotely. All bets are off once the Senate accepts the nuclear option mechanism.

Are the Democrats helpless? Hardly. If the ruling is limited to judicial nominations, as Frist hints that it would be, Democrats can filibuster any other debatable measure in anticipation of a Republican move to bring up a controversial judicial nomination.

Would a minority party engage in such massive retaliation? So far, majority leaders have not taken the chance to find out. Colossal damage could be done to the majority party’s, and perhaps the president’s, agenda at a time when the majority is seeking to exploit the momentum of election victories.

Less brutish option

The right move for the Senate is to change Rule 22 rather than undermining the filibuster by a raw power move. Republicans would have our support for a reform along the lines proposed by Frist and other senators. Guarantee votes on nominees in committee and impose a deadline on the committee, say 120 days. Next, change Rule 22 so that over a two-week period, the number of votes required for cloture would fall from 60 to 57 to 54 and finally to 51. All together, including additional post-cloture debate time currently provided under Senate rules, a minority could delay action for 16 days. It would be hard to argue with more than two weeks of full-time Senate debate that senators had not had ample time to debate and educate the public.

There is little reason to be optimistic. Ending a filibuster on a resolution to change the rules is unlikely under current conditions. And this is about par for the course in the history of the filibuster. Minorities object to the change and individual senators, usually without saying so publicly, do not like to give up the leverage that comes with single-handedly stopping the Senate until they tire or cloture is invoked.

If these realities lead the Senate Republicans to take the nuclear option, we can only hope that the ensuing parliamentary war produces more substantial change in the Senate’s limits on debate and its convoluted view that minorities can forever block changes in its rules. This is up to senators – restrain your partisan and ideological impulses, or expect the public to demand fundamental changes in an institution that belongs to all of us.