JurisImprudence Part II: Filibustering the Constitution

"I have come to the conclusion that one useless man is called a disgrace, two men a law firm, and three or more a Congress" -- John Adams

Over the past twenty years the confirmation process of federal judges has slowly broken down. Attempts at confirming judges have increasingly assumed a partisan nature, and an unprecedented level of obstruction. The intense scrutiny of a nominee’s personal and professional background, the legitimacy of confirming them on the basis of “ideological litmus tests,” and the questionable constitutionality of certain obstructionist tactics employed by the Senate, have all contributed to what many consider a full blown crisis. As the situation stands, Senate Republicans have threatened to change Senate rules that would restrict the use of the filibuster, the Democratic party’s most effective weapon in blocking nominees. Unfortunately for an overworked and strained Judiciary, Democrats have responded by threatening to shut down the Senate. In 2002, the American Bar Association specifically blamed the Senate Judiciary Committee as a “cause of blockage in the confirmation process.”[1]
Although dubbed the “nuclear option” by some left leaning pundits, history and logic side with the GOP. The filibuster that was used unsuccessfully by Strom Thurmond to block civil rights legislation was not nearly as powerful a weapon as it has become. The modern filibuster is much more powerful than its historical predecessor because it is invisible. Current Senate rules do not require any senator to actually hold the floor to filibuster, which although it spares CSPAN from airing 24 hours of Ted Kennedy reading from a phone book, it empowers a minority to block whatever it wishes without penalty. Today a minority of 41 senators can simply notify the Senate leadership of its intent to filibuster, and fly back to Massachusetts in the same day. Other Senate business goes on, but a vote on a particular issue--a nomination--cannot be brought to a vote.
Although it would be a tretch to call this unconstitutional, it is clear that the Senate has surpassed the role our founding fathers envisioned.

First, current rules are suspect on the grounds that they infringe on the President’s power to nominate judges. The Framer’s were clear that the President should have the sole power to nominate judges. This is evident in the Constitution where it reads, 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 [Principal] Officers of the United States, whose Appointments are not herein otherwise provided for.”[2] The Senate’s ability of “advice and consent” clearly means they have the power to vote for confirmation. Although the Constitution does not say only a simple majority is sufficient, it is clearly implied. Where the Framers intended a two-thirds majority, they specified it; as in requiring a two-thirds majority to convict in an impeachment trial, expel a member, overcome a Presidential veto, approve a treaty, or propose a Constitutional Amendment. Current Senate rules regarding filibusters render this meaningless.
In addition to infringing on the Executive’s power, the Framers would have been opposed current rules on the grounds that it leads to a greater degree of Senatorial influence on this power. Federalist #76 states, “one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.”[3] The Framers were careful to protect the nomination power from any collective group. They believed, “[e]very mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope.”[4]
The Framers also explained when and to what effect the Senate should use its’ power to confirm:
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.[5]

Nowhere in this clause, is the rejection of nominees based on their political persuasion mentioned. This check on the President’s power of nomination existed only to ensure he did not abuse it by nominating unqualified cronies. This notwithstanding, the Framers clearly did not envision the current level of obstructionism displayed by the Senate. The writers of the Federalist papers predicted, “[i]t is also not very probable that his [the President] nomination would often be overruled.”[6]
The Framers clearly intended that the President should have the power of nomination. By requiring the “Advice and Consent” of the Senate, the Framers checked this power, in the hopes that it would be applied in preventing the nomination of unfit candidates. Expanding this role by requiring a de-facto two-thirds majority to confirm nominees clearly exceeds what was intended to be the Senate’s proper role in this matter.
It is also clear, especially given the current difficulties in confirming judges, that current rules that require more votes needed to confirm a judge would unduly increase the Senate’s role in the judicial nominating process. By requiring more Senators to confirm a nominee, the judicial philosophy of a judge must be palatable to more Senators. This has a disastrous effect. Judges on lower courts are currently pressured to reach politically neutral decisions if they wish to advance their careers. The importance of applying law based on its’ adherence to the Constitution is increasingly diminished. The Framers took great pains to prevent this by writing:
where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.[7]

Judges should make decisions based on the will of the Constitution, not the Senate. Current Senate rules create an indirect, but nonetheless significant influence to do otherwise. Jurists know that any controversial decision they make could prevent the advance of their career.
In addition to infringing on the President’s power and unduly expanding the power vested in the Senate, these rules are punitive because they threatens the overall independence of the Judiciary. The Framers were greatly concerned with protecting the independence of the judiciary from the other branches of government. In The Federalist # 80, Hamilton quotes Montesquieu when he writes, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”[8]
Under current rule, the Senate has a much greater influence over how judicial nominees think. This risks turning the judiciary into another legislative branch. The Senate should not have a greater ability to confirm judges that are politically “sympathetic”, rather then judges who apply the law. The influence of politics in the application of law is exactly what the Framers sought to avoid.



[1] Todd F. Gaziano, A Diminished Judiciary: The Causes and Effects of the Sustained High Vacancy Rates in the Federal Courts: Testimony before the House Judiciary Committee - Subcommittee on the Constitution, October 10, 2002
[2] The United States Constitution, Art. II, § 2, cl. 2.
[3] THE FEDERALIST No.76
[4] THE FEDERALIST No.77
[5] THE FEDERALIST No.76
[6] THE FEDERALIST No.76
[7] THE FEDERALIST No.80
[8] THE FEDERALIST No.80