Up-or-down Vote on the Judiciary... Constitutionally Speaking
May 8, 2005
These unprecedented filibusters in the US Senate on judicial nominations are unconstitutional. While the Senate has the constitutional authority to determine its procedural rules, those rules cannot violate the Constitution itself. The Constitution mentions ratifying treaties and confirming nominations in the very same sentence; however, a supermajority for the first is mentioned but not for the second. The Senate cannot amend the Constitution merely by passing or by abusing a rule.
The Constitution assigns to the President, the nomination and, subject to the Senate consent, the appointment of judges. America's founders intended the Senate to play a secondary role, in large part to ensure against appointment of incompetent and less than credible individuals. Filibustering debates and preventing an up-or-down vote on judicial nominees are upsetting that constitutional balance in a way that also threatens the independence of the judicial branch.
There are those who are asking about this supermajority rule requiring a three-fifths vote to end judicial confirmation "debate" in the Senate and force a vote. Why is it here and where did it come from? Clearly, this rule is not a constitutional requirement. The Constitution requires two-thirds vote to override a presidential veto, pass a constitutional amendment, approve treaties or expel member of Congress. However, all that the Constitution says about the appointment of judges is that they are appointed by the President with "the Advice and Consent of the Senate." Therefore, absent a constitutional requirement for a supermajority, a majority is what is called for constitutionally. And the US Constitution is the supreme law of the land.
Further, there are those in America who want to see a return to a genuine separation of powers along three coequal branches of government--and some degree of humility and respect for the representative democracy in a federal republic restored among an oligarchic judiciary that today seems to act de facto as the superior branch.
Clearly, the US Constitution declares (Article 11, Section 2, and Clause 2) that executive-branch appointments are subject to confirmation by the full Senate and that such consideration is not obstructed. Historically and up until 1917, Senate rules allowed for unlimited debate on legislative matters. In 1917, the rules were changed to allow a two-thirds vote (67) to close debate and call for a vote. In 1975, the rules were changed to allow 60 Senators to invoke cloture. At that time, when the democrats controlled the Senate, Senator Ted Kennedy said, "Again, and again, in recent years, the filibuster has been the shame of the Senate and the last resort of special-interest groups. Too often, it has enabled a small minority of the Senate to prevent a strong majority from working its will and serving the public interest." Also, at that time, Democrat Senator Patrick Leahy said, "I have stated over and over again on the Senate floor that I would ...object and fight against any filibuster on a judge." And Democrat Senator Tom Harkin of Iowa said "the filibuster rules are unconstitutional." We believe that Senators Kennedy, Leahy and Harkin had it right then, and that degree of "rightness" should be where it stands today.
Indeed, a small minority of the Senate is preventing the "majority from working its will and serving the public interest" by preventing judicial nominees from receiving their constitutionally -mandated full up-or-down vote. This is wrong. We believe it is time to put aside the rhetoric and look at the facts. It is a fact; there are those in the Senate who have taken the unprecedented step of blocking no fewer than 10 nominees of the President to the Federal circuit courts of appeal. As a result, President Bush has the lowest appeals court confirmation rate for any first-term President ever. It is a fact that each of these filibustered nominees has the support of a majority of the Senators, and each has received a rating of qualified or well qualified by the America Bar Association. In short, these nominees are competent and credible. It is a fact that today for the first time in our Nation's history, a President's nominees to the Federal bench are being required to receive a 60-vote supermajority rather than the traditional majority, the up-or-down vote, that has been the standard for 214 years.
It is a fact that the ongoing filibuster of the President's nominees has prevented the US Senate from filling its constitutional duty to provide advice and consent to the appointment of men and women chosen to sit on our Nation's highest courts. And this too, is wrong.
Until this current Administration, every judicial nominee with support from a majority of Senators was confirmed. The majority vote standard was used consistently throughout the 18th, 19th, and the 20th century for every President's nominees, Democrat or Republican, even Whig party, until George W. Bush's judicial nominations wee subjected to a 60-vote standards. Clearly, it is the right and, more importantly, the Constitutional thing to do... that is, to allow the tradition of 214 years to continue with an up-or-down vote for the President's judicial nominees. And that is how we see it FROM OUR PERSPECTIVE.