An Online Journal of Political Commentary & Analysis
Volume V, Issue # 165, June 25, 2003
Dr. Almon Leroy Way, Jr., Editor
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By Dr. John C. Eastman

The subject of this presentation is the U.S. Senate judicial confirmation process--the process whereby the Senate grants or withholds its consent to the President's nom- ination of a person to fill a vacancy on one of the U.S. Courts. If the Senate, by ma- jority vote, rejects--i.e., withholds consent to, or confirmation of--a judicial nomina- tion, the President's nominee for a federal judgeship is not appointed, he doesn't get the job.

The Senate confirmation process exists because, in the American constitutional and political system at the national level, the appointment of a federal judge is a power shared equally by the President and a majority present and voting in the Senate. Both the President and a Senate majority must agree on a judicial appointment. The President nominates someone to fill a federal court vacancy and the Senate, in con- sidering the President's nominee, may or may not confirm the nomonation.

The basis of the judicial confirmation process is found in Article II, Section 2, of the United States Constitution:

    "The President ... shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law, but the Congress may by law vest appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the deads of departments."

The U.S. Constitution mandates that presidential nominations of judges to sit on the U.S. Supreme Court be subject to Senate confirmation. The Constitution grants to Congress the power to decide, by law, whether presidential nominations of lower federal court judges are to require Senate consent to become appointments, or appointment to these judicial officers is to be vested in the President alone. And Congress, by federal statute, has made the President's nominations of judges of the lower federal courts subject to Senate approval.

Use of the filibuster by some Senate Democrats, motivated by narrowly partisan and special-interest considerations, to block Senate confirmation and therefore appoint- ment of judicial nominees put forward by Republican presidents has convinced many members of Congress, Democrats as well as Republicans, that the confirmation process is broken and needs to be fixed.

This is the third time I have testified before Congress in the past nine months about the judicial nomination process. Last October, I testified at an extraordinary hearing held before the House Judiciary Subcommittee on the Constitution. I say “extraor- dinary” because it is rare for a the U.S. House of Representatives even to consider, much less hold committee hearings about, the confirmation process, which the Con- stitution textually commits to the Senate alone. I think the fact that the House held such a hearing is itself testimony to the significance of the issue before you today.

And last month, I testified before the Senate Judiciary Subcommittee on the Con- stitution at a hearing chaired by Senator John Cornyn addressing the constitutional- ity of the filibuster, which, for good reason, has only rarely been used against judicial nominees. As I noted at the time, the use of the filibuster to erect a supermajority vote requirement is particularly troubling in the context of the judicial confirmation process, for it thwarts not just the majority in the Senate and the people who elected that majority—as any filibuster of ordinary legislation does—but it intrudes upon the President’s power to nominate judges, and threatens the very independence of the Judiciary itself.

Whether the filibuster is an unconstitutional restriction on a majority of the Senate in ordinary legislation has been much debated, but its use in the judicial confirmation process is particularly troubling. As my fellow panelist, Michael Gerhardt, has noted:

    "[J]udicial nominations trigger separation-of-powers concerns not present in many of the other areas in which the Senate does not take final action on matters committed to its discretion. The fate of the third branch is conceivably at risk, because individual senators and committees might be able to impede filling enough judicial vacancies to reach the tipping point at which the quality of justice administered by the federal courts has been seriously compromised or sacrificed.

I would go farther and note that the appointment power is located in Article II of the Constitution, which defines the powers of the President, not in Article I, which defines the powers of the legislature. As the Supreme Court has itself noted, by vesting the appointment power in Article II, the Framers of our Constitution intended to place primary responsibility for appointments in the President. The “advice and consent” role of the Senate, then, was to be narrowly construed.

The filibuster exists, of course, by virtue of long-standing rules of the Senate, enact- ed pursuant to the Senate’s power under Article I, Section 5, of the Constitution to “determine the Rules of its Proceedings.” And as I noted last month, I think that, by encouraging extensive debate, the filibuster has in no small measure contributed to the Senate’s reputation as history’s greatest deliberative body. But there comes a point when the Senate’s rules are no longer used as a means to foster debate, but are rather abused, as a means to obstruct, to alter the Constitution’s presumption of ma- jority rule, and to intrude upon a core power granted to another branch of the govern- ment.

Several times in our nation’s history, the Senate has modified the filibuster rules in response to actions that it believed were an abuse of those rules. In 1917, for exam- ple, after my own great uncle, the distinguished Senator from Wisconsin and future Presidential candidate Robert M. LaFollette, successfully filibustered President Woodrow Wilson’s proposal to arm American merchant ships so that they could de- fend themselves against unlawful attacks by German U-boats, this body abolished the century-old rule that debate could be cut off only with unanimous consent, and adopted in its stead a rule permitting debate to be terminated if two-thirds of the Senate voted to invoke cloture. Subsequently, the threshold to invoke cloture was again lowered to the 60 votes currently required by Senate Rule XXII.

In 1995, Democratic Senators Joe Lieberman and Tom Harkin proposed to amend the rule further, providing for a sliding scale that would have allowed ample oppor- tunity for debate on any nomination but that would have provided for a successively lower threshold to invoke cloture until, upon the fourth motion for cloture, a simple majority of this body would ultimately be able to insure that a vote was held on the President’s nominees. Democratic Senator Zell Miller reintroduced the same pro- posal in March of this year, and Majority Leader Frist’s proposal, under consid- eration today, provides for the same sliding-scale mechanism that allows for ample opportunity for a full debate but that, in the end, allows the majority to compel an up-or-down vote on a nominee. Given the increasingly acrimonious history of the judicial confirmation process, I think these proposals are long overdue. Indeed, ma- jority rule prevailed in this body for the first two decades of its existence, when ex- tended debate could be cut off by a motion for the previous question, which required a simple majority vote. And the invocation of cloture by majority vote was the initial proposal offered in response to Senator LaFollette’s filibuster in 1917.

The sliding-scale proposals that have been offered by Majority Leader First and Senators Miller, Lieberman, and Harkin do have one distinct advantage over the motion for the previous question that was in effect between 1789 and 1806, and the simple majority-vote rule for cloture first proposed in 1917: they allow for the con- tinued use of the filibuster to ensure adequate debate, but are designed to prevent the filibuster being abused to thwart majority rule.

The advice and consent role envisioned by the Constitution’s text is one conferred on the Senate as a body, acting pursuant to the ordinary principal of majority rule. As Professor Michael Gerhardt has previously argued, “the Framers required a simple majority for confirmations to balance the demands of relatively efficient staffing of the government with the need to check abusive exercised of the President’s discre- tion.”

Yale Law School Professor Bruce Ackerman apparently agrees, as his 1998 recom- mendation to adopt a supermajority vote for confirmation of Supreme Court justices was made by way of a proposed constitutional amendment rather than Senate rules. Professor Gerhardt rightly pointed out at the time that “it is hard to reconcile [a supermajority requirement] with the Founders’ reasons for requiring such a vote for removals and treaty ratifications but not for confirmations.” Instead, the Constitution embodies a presumption of judicial confirmation, because it requires [only] a majority for approval” and not the two thirds vote required for treaty ratification or removals.

Several sitting Senators have likewise acknowledged the fundamental importance of majority rule. On January 4, 1995, for example, Senator Joe Lieberman stated on the floor of the Senate that “there is no constitutional basis for [the filibuster]… [I]t is, in its way, inconsistent with the Constitution, one might almost say an amendment of the Constitution by rule of the U.S. Senate.” Senator Tom Daschle noted on the Senate Floor on January 30, 1995, that “the Constitution is straightforward about the few instances in which more than a majority of the Congress must vote--a vote in the two houses of Congress to override the President's veto of a congressional bill, a vote in the Senate to ratify a treaty, and a Senate finding of guilt in an impeachment pro- ceeding. Every other action by the Congress is taken by majority vote. The Founders debated the idea of requiring more than a majority . . . . They concluded that putting such immense power into the hands of a minority ran squarely against the democratic principle. Democracy means majority rule, not minority gridlock.” And on March 1, 1994, Senator Tom Harkin said on the Senate Floor: “I really believe that the fili- buster rules are unconstitutional. I believe the Constitution sets out five times when you need majority or supermajority votes in the Senate for treaties, impeachment.”

Quite frankly, I think such absolutist positions fail to account for another constitu- tional provision, the power in Article I, Section 5, given to each house of Congress to determine the Rules of its Proceedings.” But they do serve to highlight just how troubling it is for a minority of the Senate or even a single Senator to block a Presi- dent’s judicial nominee when the nominee enjoys majority support in the Senate. A filibuster rule designed to encourage necessary debate is certainly within the scope of this constitutional provision, but a filibuster designed not to encourage debate but to thwart the will of the majority long after the debate has run its course runs afoul of other constitutional norms, such as the requirement for majority rule in the absence of a specific constitutional provision to the contrary.

As I said, the anti-majoritarian nature of the filibuster is troubling even in ordinary legislation, but it is particularly troubling in the context of judicial confirmations. The judiciary is itself designed to be a counter-majoritarian institution, but that means the institutional checks on it must be given special heed. One check is the possibility of impeachment merely for lack of “good behavior” rather than “high crimes and mis- demeanors” standard applicable to other officers of the government—a check that has been largely meaningless since the ill-fated impeachment of Justice Samual Chase during the Presidency of Thomas Jefferson. The other principle check—the only one that is still viable—is the ability of the electorate, through the choice of a President (or succession of Presidents) to have an impact, over time, on the judiciary through the President’s appointment power. Individual members of the Senate are simply not accountable to the entire nation in the way that the President is.

To be sure, the President is not without other countervailing powers, powers that can be used to counter an abusive use of the Senate’s rules to thwart the majority will. Article II, Section 2, of the Constitution gives the President the power to make re- cess appointments, but in the context of the judiciary, these appointments are not without their own separation of powers issues. recess appointments are temporary, lasting only until the end of the next session of Congress. Those appointed neces- sarily lack the independence that comes with life tenure, one of the key institutional protections afforded to the judiciary. While nothing in the text of the Recess Ap- pointments Clause forbids such appointments—President Clinton used the recess appointment power to name Roger Gregory to a seat on the Fourth Circuit Court of Appeals, for example—such structural concerns counsel for its use only as a last resort, when a rump faction of the Senate has persisted in blocking judicial nominees who command majority support.

These concerns are not new, and they are not raised only by those who find the cur- rent President’s nominees to be impeccably well-qualified. Lloyd Cutler, a prominent Washington attorney and former counsel to President Clinton, noted in a letter crit- icizing the filibuster of Abe Fortas’s nomination to be Chief Justice of the United States, for example, that “Nothing would more poorly serve our constitutional system than for the nominations to have earned the approval of the Senate majority, but to be thwarted because the majority is denied a chance to vote. …Whatever the merits of the filibuster as a device to defeat disliked legislation, its use to frustrate a judicial appointment creates a dangerous precedent with important implications for the very structure of our Government.” More recently, Mr. Cutler has contended that “re- quirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional.”

Mr. Cutler echoed the view that prevailed throughout most of our nation’s history. After Andrew Jackson defeated John Quincy Adams for President in 1828, Adams had several months as a lame duck President in which to nominate Judges to the federal bench. Because he no longer had the confidence of the people, several Senators wanted to postpone consideration of John J. Crittendon, whom President Adams had nominated as an Associate Justice of the Supreme Court. Although the Senate ultimately rejected the Crittendon nomination, the arguments made against the delay were profoundly important and ultimately carried the day throughout most of this nation’s history. Senator Holmes argued, for example, that although the Sen- ate had a right to deliberate and look into the character and qualifications of a can- didate, it had “no constitutional power to resist its execution.” Delays beyond what were necessary to deliberate about the nominee’s qualifications were, he as- serted, “an abuse of a discretion” given by the Constitution. Senator Johnson echoed the sentiment, stating that “The duty of the Senate is confined to an inquiry into the character and qualifications of the person, and to a decisive action upon the nomina- tion, in a reasonable time.” Johnson made the following dire prediction: “The mo- ment you depart from the constitution, and begin an attack upon the other depart- ments of the Government, you commence a conflict of authority where there is no arbiter, which will end in perpetual collision, or in the destruction of the Govern- ment.” That, and the similar prediction by Senator Chambers—“Once let discretion be adopted as the rule of conduct for those in power, and no man can prescribe limits to the mischief which must ensue”—should give us all pause at the actions, or rather inaction, currently being undertaken in the Senate as the result of the abusive use of the filibuster.

What this historical incident describes is a distinction between the proper use of the filibuster, to promote legitimate debate against any attempt by a majority to ram a vote through the Senate, and the improper—indeed, unconstitutional—use of the filibuster to prevent the majority from taking action even after the debate has fully run its course. With the President’s constitutional power to nominate judges effec- tively under attack, and with it the independence of the judiciary itself, it is incumbent upon the Senate to consider revisions to Senate Rule XXII and other procedural mechanisms that have led to the current crisis.

This brings me to the second point I want to make today. There will undoubtedly be some who will contend that Rule XXII can only be changed by a two-thirds vote, pursuant to provisions in the same Rule. In my view, whatever the constitutionality of the filibuster itself, the use of supermajority requirements enacted by a prior Senate to thwart the will of the majority of the current Senate, and even to prevent it from adopting its own rules, is patently unconstitutional.

I believe this is one of the most critical issues addressed at the committee hearing chaired last month by Senator John Cornyn, and the one on which there is the most agreement among constitutional scholars. When refuting the claim made by Profes- sor Bruce Ackerman and others that the supermajority requirement for tax increases adopted by the House of Representatives in 1995 was unconstitutional, for example, Professors Kathlene McGinnis and Aaron Rappaport argued that the supermajority requirement was a constitutional exercise of the House’s power to make its own rules “so long as the rules are themselves subject to repeal or emendation by majority vote.” To hold otherwise would be to allow one house of Congress to bind its succes- sors, contrary to one of the most fundamental maxims of legislative power, described long ago by William Blackstone (who in turn attributed it to Cicero): “Acts of parlia- ment derogatory from the power of subsequent parliaments bind not.” It would also allow one house of Congress essentially to amend the Constitution without resort to the exclusive amendment mechanism spelled out in Article V.

Professors Erwin Chemerinsky and Catherine Fisk took the same position in their Stanford Law Review article, “The Filibuster.” Although they believed that the filibuster rule was a constitutionally permissible exercise of the Senate’s power to enact its own rules, they correctly concluded that the attempt to lock in the filibuster rule by permitting amendment of it only by a supermajority vote—what they called “entrenchment” of the filibuster rule—was itself unconstitutional. And they pointed to a long line of Supreme Court decisions reaching the same conclusion. In Ohio Life Insurance and Trust Co. v. Debolt, for example, the Court held that “no one Legis- lature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body.” In Newton v. Commissioners, the Court held that “[e]very 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. All occupy, in this respect, a footing of perfect equality.” Most significantly, Professors Chemerinsky and Fisk persuasively argued that to allow one legislature to bind a subsequent legislature to rules that could only be changed by a supermajority vote requirement would be the kind of restriction on the political processes that the Supreme Court suggested in footnote four of United States v. Carolene Products Co. should be subject to “more exacting judicial scrutiny.” “Congressional rules which allow simple majorities of one session of Congress to bind majorities of future sessions can be viewed,” they concluded, “as precisely the sort of ‘systematic malfunc- tioning’ of which the Court should be concerned.”

In sum, I think the proposed amendments to Rule XXII, that would allow ample op- portunity for extended debate but that would, ultimately, vindicate the principle of majority rule are a welcome solution to the extended delays we have been witnessing in the confirmation process. It is my opinion that those amendments can themselves be adopted by a majority vote. The imposition of a supermajority vote requirement, adopted decades ago by a Senate comprised of entirely different members, would be an unconstitutional restriction on the Senate's Article I power “to determine the Rules of its Proceedings.”

The foregoing was presented, on June 5, 2003, as testimony before the U.S. Senate Committee on Rules and Administration.

Appointment of U.S. Federal Judges

Legal Issues, Lawyers, & America's Judiciary

American Government & the U.S. Congress

American Government & the U.S. Presidency

U.S. Constitutional Law & Political Philosophy

Dr. John C. Eastman is Professor of Constitutional Law at Chapman University School of Law in Orange, California, and Director of the Claremont Institute Center for Constitutional Jurisprudence, a public interest law firm devoted to furthering the mission of the Claremont Institute to restore the principles of the American Founding to their rightful, preeminent authority in our national life.

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An Online Journal of Political Commentary & Analysis

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Conservative Government Ensures a Nation's Strength, Progress, & Prosperity