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The Nuclear Option in the Senate
Posted by: McQ on Wednesday, March 02, 2005

Question: Who's really using the "nuclear option" in the judicial nomination process?

The Democrats contend it's the Republicans through their threat of having filibusters within the nomination process declared unconstitutional.

Republicans on the other hand, claim the process is not constitutionally open to filibuster as filibuster is now being used and its continued use in such a manner is indeed unconstitutional.
Majority Leader Bill Frist (R-Tenn.) said filibusters of judicial nominees "can't be tolerated by the American people." He again held out the possibility of ruling such filibusters unconstitutional -- the so-called nuclear option -- which would trigger a fierce retaliation, Democrats say. But for now, Frist said, "I'm trying to show restraint."

Moments later, Sen. Robert C. Byrd (D-W.Va.) delivered a floor speech denouncing any strategy that would "curtail the right of extended debate in this hallowed chamber. . . . The claim that no right exists to filibuster judges aims an arrow straight at the heart of the Senate's long tradition of unlimited debate. . . . We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws."
Who's right? Or maybe a better question is, who's on firmer constitutional ground?

Is Byrd's contention that this is akin to political maneuvering in Nazi Germany (where's Godwin when you need him) to ensure the appearance of legality is maintained regardless of the ethics of the action, or is it, as Sen. Frist claims, an unconstitutional use of flilbuster?

Noted constitutional scholar Dr. John C. Eastman (a Professor of Constitutional Law, Chapman University School of Law, and Director, The Claremont Institute Center for Constitutional Jurisprudence) weighed in with Senate testimony during May of last year. His opinion is that the use of filibuster in the process of nomination for judicial posts is indeed unconstitutional and he explains why.
Let me first note that I am not opposed to the filibuster per se, either as a matter of policy or of constitutional law. I think the Senate is, within certain structural limits, authorized to enact procedural mechanisms such as the filibuster, pursuant to its power under Article I, Section 5 of the Constitution to “determine the Rules of its Proceedings.”

And I think that, by encouraging extensive debate, the filibuster has in no small measure contributed to this body’s reputation as history’s greatest deliberative body. But I think it extremely important to distinguish between the use of the filibuster to enhance debate and the abuse of the filibuster to thwart the will of the people, as expressed through a majority of their elected representatives. The use of the filibuster for dilatory purposes 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.

First, it is important to realize that the use of the filibuster in the judicial confirmation context raises structural constitutional concerns not present in the filibuster of ordinary legislation. Second, these constitutional concerns are so significant that this body should consider modifying Senate Rule XXII so as to preclude the use of the filibuster against judicial nominees. Third, any attempt to filibuster a proposal to change the rules would itself be unconstitutional. And finally, I believe that if this body does not act to abolish the supermajority requirement for ending debate on judicial nominees, it could be forced to do so as the result of litigation initiated by a pending nominee, by a member of this body, or even by the President himself.
That's the Reader's Digest version, but it is worth reading the rest of his testimony as he makes a very strong case against the use of filibuster as Byrd, Schumer and the Democrats are using it now.

That's not to say that the Republicans are blameless in this process either. In the past, they spent a good amount of time bottling up Clinton nominations in the Senate Judiciary committee as well. What's happening now is as much political payback as anything. As Kevin Drum notes, the Republicans didn't use filibuster, but their techniques had the same effect:
Of course, quite a few of them didn't reach the full Senate — despite the fact that they had majority support. And why was that? Because they were bottled up in the Judiciary Committee, Orrin G. Hatch, chairman. What's more, many of them were bottled up via arcane Senate rules that Hatch has systematically dismantled now that it's a Republican president who's nominating judges.
All true and those with intellectual integrity know that. Drum's solution?
So here's a deal for the Republican leadership: allow Democrats to use all the same rules that Republicans have made such copious use of over the past few decades in order to stall judicial nominations and prevent them from coming before the full Senate for an up or down vote. That means rules like anonymous holds, blue slips, and minority consent to report out nominees.

Those rules have all but disappeared since George Bush was elected. Give them back and maybe the filibusters will stop. Deal?
A return to "business as usual", which, of course he was complaining about when it applied to Clinton's nominees. (If you're interested in what an anonymous hold and blue slip are, Boffoblog covers that here).

I'm sorry, but that just doesn't seem like a rational way to end this stalemate, does it? It fixes nothing in terms of the intent of the Constitution and the judicial nomination process, i.e. a straight up or down vote by the full Senate on nominees found to be "qualified".

In fact, the way to end this is to do as Dr. Eastman suggests. Return to the intent of the Constitution as it concerns the judicial nomination process. Of course that means one side being at a disadvantage while in the minority, but then, it seems to me that with the present use of the filibuster by Democrats they're simply trying to deny the consequences of their minority status through what appear to be unconstitutional means. And yes, the Republicans, as a minority, tried to lessen the impact of their minority status as well, but that's not the subject today.

Based on my reading and in my opinion, Frist is correct when he states that the use of filibuster in this process is indeed unconstitutional. One argument that runs counter to that claim states that the Constitution gives the Senate the power to make any rules it sees fit to make concerning its own procedures:
There is another provision that Hatch, Frist, McConnell and the others conveniently overlook as well: Article I, Section 5 which says that each chamber has the power and responsibility to make the rules for its own proceedings. The Senate can require 51 votes or 67 votes, or 13 or 79 or 43 for that matter. It can require that all votes be held on the third Tuesday of every month and that senators speak only through ventriloquist dummies. Above all, the Senate can decide for itself whether its business will use a filibuster rule. Absent clear indication otherwise in Article II, the Constitution seems clear on the matter.

But Dr. Eastman addresses this point in a couple of ways:
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 my fellow panelist, 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 discretion.” Yale Law School Professor Bruce Ackerman apparently agrees, as his 1998 recommendation to adopt a supermajority vote for confirmation of Supreme Court justices was made by way of a proposed constitutional amendment rather than Senate rules. As Professor Gerhardt has rightly pointed out, “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.
Per Eastman, the Constitutional requirement for confirmation lies with the whole Senate and not the Judiciary Committee and it requires only a majority vote, not a super majority, and any change in that would require a constitutional amendment, not a change in Senate rules.

So its rather hard to justify an argument which claims a filibuster is legitimate when it imposes a requirement on the Senate which is in conflict with the Constitutional requirement for confirmation, wouldn't you say?

And Eastman also points to the fact that leading Democrats have in the past pointed out that there are only a few instances when a majority vote is not Constitutionally mandated:
Others, including several sitting Senators now participating in the filibuster against Miguel Estrada, have contended that the use of the filibuster to block judicial nominees is an unconstitutional restriction on the power of the Senate majority. On January 4, 1995, for example, Senator 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 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 veto override, a treaty, and a finding of guilt in an impeachment proceeding. Every other action by the Congress is taken by majority vote."
Even former Democrat Senator Dennis DeConcini can find no constitutional basis for application of the filibuster in judicial nominations:
Some, such as Senator Dennis DeConcini and Law Professor Yvette Barksdale, have gone so far as to argue that the text of the advice and consent clause requires an up or down vote on every nominee—suggesting that individual holds and even the filibuster itself is an unconstitutional infringement on the President’s appointment power.
Interestingly, Eastman doesn't come down completely on the side of what he calls the "absolutists" such as Lieberman, DeConcini and Barksdale, but notes them mostly to point out that the Democrat position of the present is hardly consistent. Eastman does indeed point out that Constitutionally the Senate has the power to set its own rules, but then makes a very important point about that power and its result:
Quite frankly, I think such absolutist positions fail to account for another constitutional 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 President’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.
The emphasized line is the crux of the argument and the basis of the charge that the use of a filibuster in this case is unconstitutional because it is being used to thwart the will of the majority and not to encourage necessary debate. That's a key point. Filibuster is being used after the debate has ended to prevent the up or down majority vote required by the Constitution. That is why Republicans are contending its use is unconstitutional.

Eastman concludes his opinion and testimony thusly:
In sum, there is good reason that the filibuster has only rarely been used in the context of judicial confirmations, and never before against a circuit court judge. The use of the filibuster thwarts the will of the majority, and is therefore not only undemocratic but very likely unconstitutional. Moreover, should the Senate decide on its own initiative to repeal the offending use of the filibuster rule, any attempt to use the filibuster to entrench the filibuster would itself be unconstitutional, and would provide grounds for court intervention either by nominees, by individual Senators, or perhaps by the President himself, to insure that the constitutional norm of majority rule is given effect.
So the question is who's using the "nuclear option" here ... the Republicans by trying to return to the Constitutional norm of a straight majority vote or the Democrats who's filibuster is a direct attempt to thwart that norm?

This will be an interesting fight. Just as interesting will be how the fight and the underlying constitutional questions are spun by each party and characterized in the press. But in my opinion, its time to stop the maneuvering and games concerning judicial nominees and allow the up or down votes by the full Senate to procede unimpeded by filibusters which seem designed to hurt rather than help the process.
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Previous Comments to this Post 

FYI, former White House counsel C. Boyden Gray has an analysis on the judicial filibuster at:
Written By: CFJ

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