The Volokh Conspiracy

It would drive judge choices towards the middle, although we can still hope for the ocassional iconoclast. That leaves both conservatives and liberals out in the cold.

Yours,
Wince

One effect of the "nuclear option" is that it would become EASIER for the President to get his judicial appointees than it would for him to get his other appointees. I don't know if I can think of a principled argument for this result, although Senate Republicans continue to insist they only want to eliminate the filibuster for judicial nominees, and not other nominees.

If anything, you'd think it should be tougher to get judges approved, since they are (1) lifetime appointments, and (2) part of an independent branch of government. But at a minimum, it sure seems hard to justify why they should be MORE easily confirmed than other nominees.

Here's a novel concept: how about voting on batches of nominees instead of one at a time, much the same way a parliament will approve a new executive government. If there could be a semiannual round up of all appellate and lower court openings, and spots are divvied up according to the party’s representation. The president submits all nominees, and the majority party gets to pick some of them out of that pool (55% under the current Senate breakdown), and the minority gets to pick the rest. There could even be a system where the party leadership of each party submits names that they request the President include in his nominations. This way, we would maintain a system where, regardless of President, liberal, conservative, and moderate judges all get on the bench.

Federalist papers #76 and 77 talk about the logic behind the 'advise and consent' responsibility of the Senate. It pretty clearly implied that the main reason is not to deny the President judicial picks that the Senate doesn't like, but to require that the whole process be done in the public eye. That way the public can get rid of Senators and/or the President at the next election if they see either wanton unreasonableness or corruption. My take on the Federalist's arguments seems to lean against fillibusters, but I'm no lawyer, just a libertarian geek.

"It seems like there's something to be said for the proposition, insofar as judges are supposed to be nonpartisan, so requirng some measure of assent from both parties would seem to permit the bench to be less politicized than it might otherwise would be."

Come on, Paul. What you're talking about is an increase in bi-partisanship not an increase in non-partisanship. They are different creatures.

What I think you mean by "non-partisan" is that judges should be impartial. They should follow the law, not their opinion of what the law should be. And isn't that the Republican position on judges? Maybe you disagree, but I don't. That is the number one reason I am a Republican and vote for Republicans. It follows, then, that allowing the Democrats to have some sway by requiring 60 votes will make judges more likley to be biased, to read their own preferences into the law, and to adhere to precedent which grossly deforms the Constitution. How is that a formula for impartiality or non-partisanship?

Requiring 60 votes for confirmation would, however, make nominees more "moderate." We would likely get more Sandra Day O'Connors. I don't know many that would describe her as "impartial." Unprincipled and incoherent maybe. Moderate is a word for a politician or a policy, it is not an interpretive philosophy. How do you "moderately" interpret a statute or the Constitution? Choose the position halfway between what a statutue says and what it doesn't say? Halfway between what a statute says and what you want it to say? Maybe you can explain that one to me, Mr Gowder.

Does anyone else agree with JJ's argument that a Senate rule requiring "consent" to be unanimous would be, not just a bad idea, but *unconstitutional*? (And that, by implication, only a simple majority can be required?)

(I'll assume that Challenge disagrees, because he's against reading things into the Constitution that aren't there.)

I can't agree that a unanimity requirement would violate the separation of powers; it would make the Senate more powerful vis-a-vis the President, but he would still have the power of nomination, plus other ways to make the Senate behave. Besides the evident impracticality of such a rule.

"I'm wondering, has anyone written anything good about the structural and systematic effect of filibustering judicial nominees?"

Let me see, Orin..... Since NO judicial nominees have been filibustered until today (with the exception of Abe Fortas, which was supported by approximately equal numbers of Republicans, and Democrats), that would mean very little would change. Right? What's so drastic of a change? It seems eliminating the filibuster is a formula for maintaining the status quo on judicial nominations rather than a radical change.

Now, maybe the threat of filibuster has been used to temper a given president's choices, but I think that it is unlikely threats alone have played a large role in the nomination process.

I don't see how increasing the number of votes required for confirmation in the Senate adds to or subtracts from the Senate's power vis-a-vis the President. If 100 votes were necessary to confirm in the Senate, that would surely increase the power of EACH INDIVIDUAL SENATOR, but the institution as a whole would have the exact same power it had before - it can accept the nomination, or it can reject it.

I hate to clutter up a legal discussion with debate over silly (and false) talking points like "no judicial nominee other than Fortas has ever been filibustered," so I hope that practice will simply stop.

"I hate to clutter up a legal discussion with debate over silly (and false) talking points like "no judicial nominee other than Fortas has ever been filibustered," so I hope that practice will simply stop."

That is NOT a false statement. Name another.

"Yes, it would be constitutional. It would be a Senate rule, and the Senate makes its own rules. It would be a terrible idea, of course, but constitutional."

It makes its own rules within the confines of the Constitution. If "advise and consent" was intended to mean "majority vote" then such a rule would indeed be unconstitutional.

Assuming that a lack of accepted judicial nominees would actually result in emptier benches and an even more clogged court system, I wonder who would be held responsible by the public - the majority or the filibusterers? Or if the required vote was 65, would the blame for the gridlock lie on the nominating president to offer more "centrist" nominees or on the minority senators to relaz their standards and concede to the majority?

Steve,

Nice distinction between the Senate as an institution and individual senators. I think Challenge is right though. The question is what was intended by "advise and consent." If it was intended to mean "majority vote" then the Senate cannot thwart that meaning through the use of a senate rule.

I am old enough to remember when filibusters were used by Senators like Robert Byrd (back when politcally correct liberals shunned him because he was a Klan member) and Strom Thurmond for the purpose for which they were invented -- preserving the Peculiar Institution of the South.

I was in high school when Southern DEMOCRATS stalled the passage of the Civil Rights Act and Voting Rights Act by using the filibuster. At that time every politically correct liberal believed that the filibuster was an abomination.

In that opinion, I concured. I have not changed my opinion on that subject. Of course that is not the only subject on which my opinion has not changed, but on which the so-called liberals have abandonded me, which explains why I am not a liberal anymore.

Every argument advanced by the parties to the current debate was advanced by their opponents a few years ago. Newspapers like the NYTimes which for years condemed the filibuster in the most rigorus terms have now discovered its virtues. Yet no one is embarased.

I have not changed my position, the filibuster needs to be sent to join the hateful instituons it was invented to protect, in the dustbin of history.

Mark Silverstein and William Haltom, "You Can't Always Get What You Want: Reflections on the Ginsburg and Breyer Nominations," in Jeffrey Cohen and David Nice, eds., The Presidency: Classic and Contemporary Readings (McGraw Hill, 2003) argue that, in part, the implicit threat of a Republican filibuster in 2003-2004 led Clinton to nominate "techno-judges." While it is certainly not the authors' view, it seems to me that in a democracy there's a lot to be said for techno-judges.

It's a moot point when you get to the heart of the matter - the GOP will have 60 votes a year from November (ok, January, technicall).

Or maybe 62... who can tell?

Hamilton, in Federalist #76, seems to agree with Daniel Chapman's worry in that he "[doesn't] think the federal courts are the proper forum for political compromise". Transforming the Senate's advise-and-consent role with respect to the executive's delegated power to nominate/appoint into a "committee of 100+1" would lead to the problems outlined in Hamilton's essay: that the give-and-take "I'll give you that candidate if you give me this one" behavior that necessarily attends such committee-driven appontments would lead to mediocre, not necessarily moderate, appointees.

A group of Republicans tried (unsuccessfully) to filibuster Clinton nominees Marsha Berzon and Richard Paez. Combine that with the Abe Fortas situation, and the current filibustering of judges has quite a bit of precedent.

Anon7, you infer just the wrong thing from the facts, I think. True, some Republicans (including Sen. Frist) wanted to filibuster Berzon and Paez. But cooler heads prevailed, and they failed in their effort (despite being the majority party). The idea that this is unprecedented is not rooted in the claim that nobody has ever tried it, it's that neither party has ever behaved as irresponsibly as the Democrats now are. Further, in the Fortas case, though there was technically a "filibuster" it was not in that case to support "minority rights." When a cloture vote was called, only some 40 senators supported it, I believe. Thus, Fortas did not have majority support in the Senate, unlike all of the "extremist" nominees being filibustered today.

There is simply no real world precedent for the Democrat party's behavior here--the evidence you cite is evidence, in two cases, of failed attempts and in one case of a successful filibuster against a nominee who, because of his ethical lapses, did not have the support of a majority of senators. Quite a bit of precedent?

Never before has a MINORITY of Senate support stopped a judge from getting an up or down vote. That is the main distinction today.

Really? How about when one Senator does it, as happened all the time during the 1990s (and before) by use of a blue slip.

If it's okay for one Senator to unilaterally derail a nominee, why not 41?

So much for winning elections and being the majority party these days...

Anyone who believes that the SC does not make policy is living in a dream world. If the Senate is going to change its rules, then the filibuster should be eliminated for all purposes, not just judges. Most of the arguments agaist its use on judges apply equally to all actions by the Senate. The protections that it affords to minority rights should not be discarded lightly.

Lee Harris has a very interesting article in Tech Central Station on the history of the filibuster, which can be read here. In it he reports that, rather than dating back to the early days of the American republic, the filibuster actually began only in 1872, when the president of the Senate, aka the vice president of the United States -- at the time Vice President Schuyler Colfax -- declared that "under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending matter" -- thus creating the filibuster virtually de novo. Prior to that, if I understand Harris correctly, for the entire preceding century the Senate president (VPOTUS) wielded the uncontested power to cut off any senator at any time for any reason.

It would appear, therefore, that the Senate prior to 1872 was a very different institution from that which followed -- purely because the vice president of the United States once declared it so. Could the president of the United States similarly abandon one of his constitutional powers -- committing his successors to the change for all time -- simply by declaring it gone?

Am I misunderstanding the history and meaning of this?

In addition to my earlier comment here, below are additional reasons for conservatives to oppose the "Nuclear Option"

Let Them Filibuster

The Filibuster-Proof Majority?

Mark R. Levin, A Great But Misguided American

Bush's "Nuclear Option" for Judicial Appointments: A Conservative Dissent