Recently, there has been a fiery controversy in the United States Senate. The President’s nominations for Federal Courts have been filibustered. The United States Senate has corrupted the original intent of the filibuster and is now using it as an obstructionist’s tool. The filibuster should not be used as an attempt to impede the necessary judicial nominations.
The filibuster has been changed from the Founder’s original intent and it is broken. Senator Schumer wrote, in a letter to the President, that the “judicial nomination and confirmation process” was busted. He agreed with the President that it was the job of the Senators to correct the process (1).
The Senators are not correcting the problem but are using the filibuster to block judicial nominations. They know that they cannot defeat the nomination with a straight up or down vote so they stall the nomination with the filibuster. The Senate’s part in the nomination process is clearly established by the Framers. Alexander Hamilton defines the Senator’s responsibility in the nominations progress as:
To what purpose then require the cooperation of the Senate?
... It would be an excellent check on the spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State
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prejudice, from family connection, from personal attachment, or from a view to popularity (qtd. in Cornyn, “Broken” 189 n29).
Hamilton does not say that the Senate should block the President’s appointments but protect the government from unsavory nominees. By using the filibuster, they are trying to impose their will over that of the President. The Senators agree that filibustering nominees is not their job as defined in the Constitution. Senator Tom Harking stated in 1994, “I really believe that the filibuster rules are unconstitutional” (3-4). Senator Joe Lieberman mirrored the sentiment in 1995 stating, “In fact, the Framers of the Constitution considered other cases in which a supermajority [The filibuster rules] might be required and rejected them. And we by our rules have effectively amended the Constitution-which I believe, respectively, is not right” (2).
President Woodrow Wilson remarked, in his speech “Little group of willful men”, that Senators were allowed to debate on the Senate floor as long as they wanted, as long as they had the
“physical endurance” (qtd. in Murphy 6). This ability is tied to legislation and not confirmations and to do so is to overstep their Constitutional bounds.
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The filibuster was a very open and public action. The Senator had to stand on the Senate floor and physically speak. When the Senator relinquished the floor the filibuster was over. The filibuster rules have been changed to make it a silent action. Catherine Fisk and Erwin Chemerinsky wrote about the Senate rules for filibusters:
Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a Senator to hold the floor to filibuster; senators filibuster simply by indicating to the Senate leadership that they intend to do so. The prevalence and invisibility of this “stealth filibuster” dramatically affects which legislation is passed and which nominees are confirmed. The stealth
filibuster also raises serious constitutional questions (1).
A Senator only has to request a “motion to proceed” and the filibuster is on (Murphy 11). With the filibuster being a silent and hidden action, it is used more often than necessary.
The filibuster has the ability to change the principle of government that our Founders established. The Senate minority has replaced the rules that the Framers of the Constitution fashioned in order to delay the will of the majority.
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The filibuster is intended to block legislation that may be, according to David Crockett, “hasty action, or action that has only the support of a narrow majority.” He goes on to say, “it is inappropriate for the Senate to employ a delaying tactic normally used in internal business – the construction of legislation – in a nonlegislative procedure that originates in a co-equal branch of government” (qtd. in Kristol 1-2).
It is appropriate to block legislation that may not be in the majority’s interest or even in the minority’s interest.
This does not mean that it is suitable for blocking judicial confirmations. The Senators have taken a suitable parliamentary procedure and applied it inappropriately to judicial confirmations. The filibuster was intended for internal Senate use, not as a weapon against another branch of government.
This practice has been eliminated in other Senate business. Senator Daschle remarked, “Even the Senate, with its veneration for the filibuster rule, limits its reach when it comes to the budget” (2). Not filibustering Senate business is not a new concept and has, according to John Cornyn, been abolished in 27 other laws (“Broken” 214). Why has it not been removed from the confirmation process? Senator Reid, when asked how many hours of debate he would need, is quoted as saying, “There is not a
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number in the universe that would be sufficient” (qtd. in York 22). The minority in the Senate does not want to lose its obstructionist tool.
It is not the job of the Senate to obstruct the President as Senator Boxer said, “According to the U.S. Constitution, the President nominates, and the Senate shall provide advice and consent. It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor” (2).
The obstructionist tactic employed by the Senate hurts the judiciary branch of government. The judicial branch has many vacancies and the docket is overflowing. Both Rehnquist and the ABA think this needs to be corrected as quickly as possible (ABA 6; Rehnquist 4 ). According to Senator John Cornyn, “current filibusters of judicial nominations pose a serious threat to our independent judiciary” (Cornyn, “Broken” 191). The Judiciary cannot do its job without judges sitting on the bench. The filibuster is keeping qualified judges off the bench.
The filibuster steals power from the President. It seeks to remove the authority invested in the President and put it into the Senate. D.C. Circuit Chief Judge Harry Edwards has remarked that if the Senate acted “unilaterally” it would
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“increase its own authority at the expense of the President.” He concluded that if the Senate continued, “increasing its own authority” it would usurp the nomination process (n.p.).
Susan Low Bloch, a Georgetown Law Professor, has also remarked that the filibuster would:
upset the carefully crafted rules concerning appointment of both executive officials and judges and to unilaterally limit the power the Constitution gives the President in the appointment process. This, I believe, would allow the Senate to aggrandize its own role and would unconstitutionally distort the balance of powers established by the Constitution (qtd. in Cornyn, “Broken” 202).
By filibustering the judicial nominations the Senators have tried to steal the appointment power invested in the President. The Framers separated the powers for a reason but the Senators are ignoring those reasons. Senators, who are looking to put their own will above the will of the majority, should not usurp the power of appointment. The People elected the President with full knowledge of the type of judge that he would choose. The Senate, by filibustering, has told the People of the United States that they are incompetent.
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The filibuster, in essence, goes against the majority rule that was established in the framework of the Constitution. John Cornyn, quoting from the Federalist Papers No. 22, wrote, “the fundamental maxim of republican government … requires that the sense of the majority should prevail.” He continued, “And as the Supreme Court has unanimously held, our Constitution is premised on the democratic doctrine of majority rule” (“The Constitution”, 1).
The majority must be able to set the rules of the Senate. It would be foolish to ignore the minority completely but when the minority is log-jamming a Constitutional process it becomes necessary for the majority to straighten the logs (“Voting” 16). The minority was never supposed to impose its will on the majority it is antithesis to the founding principles of democracy.
The filibuster requires a vote of cloture to end the debate. The cloture rules, set by the Senate, require 60 votes to pass. This is called a supermajority and was not required by the Framers. The Framers had other ideas about how the Senate rules for majorities should work. The Senate’s rules were originally defined in the Manual of Parliamentary Procedure,
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written by Thomas Jefferson, which stated, “[t]he voice of the majority decides. For the lex majoris parties is the law of all
councils, elections, &c. where not otherwise expressly provided” (qtd. in Cornyn, “Broken” 196). A supermajority is not defined in the Constitution for the confirmation process.
The cloture rule requires a supermajority to break the filibuster. This is unconstitutional because it allows a minority to supersede the will of the majority. Edward Kearny and Robert Heineman wrote that, “Placing additional limits on congressional majorities through operation rules and procedures of one or both houses of Congress is not constitutionally legitimate” (4). The cloture rule needs to be changed to allow a majority to bring the filibuster to an end. Closing the filibuster would allow the candidates to come before the Senate to receive a confirmation vote. Voting on the nominations would allow the Senate to complete their constitutionally imposed duty.
The continued use of a supermajority to close the filibuster would continue to threaten the Senate. Clinton advisor Michael Gerhardt has spoken against the supermajority in the cloture rule saying that it “would be more likely to frustrate rather then facilitate the making of meritorious appointments” (qtd. in Cornyn, “Broken” 194). James Madison
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wrote in Federalist #58 that if supermajorities were required for a decision there would no longer be a free government. The power of government would be transferred to the minority effectively reversing majority rule (qtd. in Murphy 14).
The supermajority required to bring cloture has not determined the outcome of the up or down vote of the nominations.
Judges Confirmed With Fewer Than 60 Votes
(97th – 106th Congresses
Judge
Court
Vote
Date of Vote
J. Harvie Wilkinson III
4th Cir.
58-29
Aug. 9, 1984
Alex Kozinski
9th Cir.
54-43
Nov. 7, 1985
Sidney A. Fitzwater
N.D. Tex.
52-42
Mar. 18, 1986
Daniel A. Mansion
7th Cir.
48-46
June 26, 1986
Clarence Thomas
S. Ct.
52-48
Oct. 15, 1991
Susan O. Mollway
D. Haw.
56-34
June 22, 1998
William A. Fletcher
9th Cir.
57-41
Oct. 8, 1998
Richard A. Paez
9th Cir.
59-39
Mar. 9, 2000
Dennis W. Shedd
4th Cir.
55-44
Nov. 19, 2002
Timothy M. Tymkovich
10th Cir.
58-41
April 1, 2003
Jeffrey Sutton
6th Cir.
42-41
April 29, 2003
Victor J. Wolski
Fed. Cl.
54-43
July 9, 2003
(qtd. in Cornyn, “Broken” 225).
These judges are all confirmed by a majority vote not a supermajority. The same vote that confirmed them would not have
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been enough to close the filibuster. The supermajority is not only unconstitutional but it is also impractical for good democracy. The supermajority replaces majority rule with minority supremacy. It also does not predict the outcome of confirmations but only delays needed judges.
The filibuster has not helped the confirmation process but has only allowed the minority to impose its will on the majority. It has also allowed the Senate to supersede constitutional authority of the President. The filibuster has directly attacked the principles the Framers instilled into our constitution. Instead of helping, the confirmation process has harmed the judiciary and the United States of America. Ronald Rotunda, paraphrasing Senator Henry Cabot Lodge, wrote, “to vote without debate is unwise, but to debate without even being able to vote is ridiculous” (2). The filibuster needs to end now and the confirmations need to move forward.
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