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Confirming judges: The constitutional option
By Michael B. Rappaport and John C. McGinnis
March 11, 2005
Politicians have notoriously short memories. With Democrats still retaining enough votes to filibuster President Bush's judicial nominees, many Republicans seek to weaken or eliminate the ability of senators to mount judicial filibusters. Under existing Senate rules, however, a proposal to change the filibuster rule can itself be filibustered and this filibuster ended only with a two-thirds vote of the Senate.
Republicans therefore favor using majority rule to change the filibuster rule, but Democrats contend that this would be improper and perhaps unconstitutional. By labeling such a change "the nuclear option," Republicans appear to concede that any majoritarian amendment would be an unprecedented threat to the harmony of the Senate.
Both Republicans and Democrats forget, however, that the existing filibuster rule itself was a product of a process very much like the so called "nuclear option." Moreover, whatever one thinks of the desirability of the filibuster rule, the structure and history of the Constitution confirm the majority's right to amend the rule.
The existing filibuster rule was enacted at the beginning of the congressional session in 1975. At that time, Sen. Walter Mondale, D-Minn., and James Pearson, R-Kan., proposed to change the old filibuster rule to permit 60 senators, rather than two-thirds of those voting, to end debate.
When this proposal was filibustered, they made a motion that debate on the amendment be ended by a mere majority. Although a senator objected that the Senate rules allowed debate to be terminated only with the approval of two-thirds of the Senate, a majority of the Senate rejected this objection. In the end, the Senate reached a compromise which enacted the present filibuster rule with its 60-vote cloture requirement, but reversed the ruling that allowed a majority to end debate on an amendment to the rules.
Thus, majority amendment of the Senate rule is not something new, but was a necessary step to enacting the existing filibuster rule, which otherwise would have been defeated by a filibuster. Moreover, liberal Democrats like Walter Mondale, D-Minn., were among the principal architects of the change. And this majority amendment was anything but nuclear, since it neither destabilized the Senate nor eliminated the filibuster. Instead, the amendment caused the Senate to negotiate a compromise that has lasted for a generation.
The Senate majority's power to modify the filibuster is also strongly supported by constitutional principles. Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct. The first view advocated most recently by Senate majority leader Bill Frist, R-Tenn. is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.
The second view advocated by many Democrats is that a majority has no right to change the filibuster rule because the Senate rules still require a two-thirds vote to end a filibuster mounted against a resolution to change the filibuster. But this Senate rule conflicts with the structure of the Constitution.
The Constitution provides only a single method the constitutional amendment process to entrench a rule against repeal by a majority. If Democrats were correct that rules can be insulated from majority amendment, a bare majority in each House could have passed the Bill of Rights and made it our fundamental law by declaring that only unanimous votes by both Houses could pass legislation violating its principles. The Democratic view also conflicts with a principle known since before the framing of the Constitution that one legislature cannot bind subsequent legislatures.
The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option the route contemplated by our founding document.
Of course, the Senate majority's undoubted power to change the filibuster rule does not mean that doing so would be good policy. If modern judges feel free to amend the Constitution in the guise of interpreting it, there is a strong argument that an express supermajority confirmation rule might be beneficial. After all, through its express amendment process the Constitution requires a stringent supermajority rule before politicians can establish new norms that will bind future generations. If judging has become just politics by other means, it does seem strange to permit justices confirmed by a mere majority to start imposing their values on the rest of us.
The Republican view, however, is that judges should enforce the Constitution as understood by those who framed it. Under this more formal view of the judicial role, the Senate does not need the hurdle of a supermajority rule, because judges are not engaged in policy-making but rather enforcing a document that was itself enacted by a supermajority.
Thus, Republicans have a legitimate, even if contestable argument, for a pure majoritarian confirmation process. What cannot be contested, however, is that the Constitution prevents the Democratic minority from blocking the Republican majority's decision to embody its principles in the rules of the Senate.
