The filibuster campaign launched in the 108th Congress against President Bush??¢â???¬â???¢s judicial nominations presents a political and constitutional crisis that can and must be solved.
Let??¢â???¬â???¢s first get the filibuster facts straight, because any valid prescription requires an accurate diagnosis. These filibusters use Senate Rule 22, which requires 60 votes to invoke cloture, or end debate, on a ??¢â???¬?????pending measure,??¢â???¬ to prevent final confirmation votes on judicial nominations. This gimmick effectively raises the bar for confirmations from a simple majority to 60 votes.
Historical sleight-of-hand by filibuster proponents cannot defend the indefensible. Before last year, no judicial nomination with clear majority support had ever been defeated by a filibuster. Thirteen of the 14 judicial nominations subject to a cloture vote were confirmed, and the other did not have clear majority support. In contrast, since March 2003, none of the 10 judicial nominations subject to cloture votes were confirmed, though each had bi-partisan majority support.
These unprecedented filibusters 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, requiring a supermajority for the first but not for the second. The Senate cannot amend the Constitution merely by passing, or by abusing, a rule.
The Constitution assigns the nomination and, subject to Senate consent, the appointment of judges to the president. America??¢â???¬â???¢s founders intended the Senate to play a secondary role, in large part to ensure against appointment of cronies, crooks, and the incompetent. These filibusters are upsetting that constitutional balance in a way that also threatens the independence of the judicial branch.
Let me put my own record on the table. I have never voted against cloture on a judicial nomination. When I chaired the Judiciary Committee in the 1990s, I condemned filibustering Clinton judicial nominations as a ??¢â???¬?????travesty.??¢â???¬ Though some conservatives criticized me for it, I believed then as I believe now, that filibusters are an illegitimate means for defeating judicial nominations.
The judicial nomination filibuster crisis can be solved. Abuse of Rule 22 lies at the heart of the current crisis, so one solution is to change Rule 22 so that it operates consistent with the Constitution. This must be done in a way that minimizes collateral impact on the Senate??¢â???¬â???¢s unique tradition of deliberation and debate, particularly on legislation. The Senate can do so with a simple majority, avoiding the very filibuster trap at the heart of this crisis.
Last year, Senate Majority Leader Bill Frist introduced, and I co-sponsored, an amendment to Rule 22 which can solve the filibuster crisis. Senate Resolution 138 would apply only to nominations and require a declining supermajority on successive cloture votes–from 60, 57, 54, 51, and finally a majority of Senators present and voting. With a few days between each vote, this approach allows plenty of debate, and as many as four failed cloture votes, before debate must finally end. This sliding-scale approach was first suggested more than 30 years ago by Senator Bob Dole, and was endorsed even by many Democrats as recently as 1995.
A simple majority can adopt such an amendment at the beginning of the next Congress. Rule 22??¢â???¬â???¢s overwhelming 67-vote requirement for cloture on amendments to the rules only applies during a congressional session. At the beginning of a Congress, before the Senate has re-adopted existing rules (including Rule 22) by operating under them, its original constitutional rule-making authority takes precedence. A simple majority can exercise that authority, invoke cloture, and amend the rules.
C-SPAN viewers have seen how the Senate??¢â???¬â???¢s presiding officer is sometimes asked to rule on various questions of order or procedure. In 1957, Vice President Richard Nixon, presiding over the Senate, ruled that ??¢â???¬?????the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress.??¢â???¬ He reaffirmed that ruling in 1959, as did Vice President Hubert Humphrey a decade later. Doing so would apply a precise solution to the specific problem, leaving intact the Senate??¢â???¬â???¢s tradition of deliberation and debate about the legislation that is uniquely under its jurisdiction.
These filibusters are unprecedented, unfair, and unconstitutional. They represent a political and constitutional crisis which can be solved in a way that preserves Senate tradition and allows the judicial appointment process once again to function fairly.