Pepperdine law professor Douglas Kmiec doesn’t like the judicial nominations deal. He thinks it lacks principle and betrays the constitutional design. The founders would have disapproved of judicial filibusters, he argues, noting that “the framers specifically considered and rejected in the 1787 convention a 2/3ds Senate concurrence for judicial appointments.” Kmiec further writes:
Anyone critical of the filibuster for denying the entire Senate its constitutional role should also be honest. Democrats were the first to deploy the filibuster in a grand way against the judiciary, but both parties had a myriad of alternative ways in which presidential nominations were prevented from reaching the floor at all. All these practices should be condemned as constitutional defaults. The default comes at the sacrifice of accountability, or what is popularly termed transparency. Filibusters denying full-floor action or bottling up nominees in committee both dangerously, as Hamilton warned, “shut up in private [and make] impenetrable to the public eye…” the judicial-selection process. . . .
When a minority of the Senate can delay or obstruct a fully-capable nominee by reason of partisan or ideological disagreement, “factions,” as Madison called them, have taken over and will erode the independence of the judiciary.
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