January 30, 2006
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Proof: Judicial filibusters violate U.S. Constitution
Every Senate has the right to make its own rules, but not its own Constitution
By Sherry & Steven Eros
"Is it asking too much that the President's nominees for lifetime appointments to the federal courts at least get the support of 60 of 100 senators?" — Sen. Joe Lieberman on ABC's This Week, on Sunday, May 22, 2005
"These last-minute efforts using procedural maneuvers ... has been the wrong way of going about it." — Sen. Barack Obama on ABC's This Week, on Sunday, Jan 29, 2006
Senate Democrats just can't understand why Republicans object to judicial filibusters requiring 60 votes to approve President Bush's nominees. They have controlled the Senate for so many decades they find it impossible to adjust themselves to minority status. They demand the right to interpret, expand, and contract the Senate's Rules to suit their whims.
An analysis of the Democrats' use of the judicial filibuster reveals that it is not only unconstitutional but conflicts with the role of the Senate as conceived in the United States Constitution.
Now that the Democrats seem to be more or less permanently locked into minority status in the Senate, they cannot comprehend why the Constitution has to stand in the way of a special new class of Senate "minority rights" to allow them to protect the world against President Bush's depredations. Oblivious to the way the Constitution narrowly circumscribes the roles of the majority and the minority in the Senate, the Democrats seek to redefine "minority rights" as "minority control" and "minority veto power" over everything done by the majority in the Senate.
The Democrats' filibuster of President Bush's judicial nominees amounts to nothing short of a legislative minority's assault on the constitutionally granted rights of the Senate majority. Out of the Senate Rules the Democrats have invented the fictitious right to judicial filibusters and have utilized this tactical maneuver as if the Constitution grants the minority veto power over the president's judicial nominees. Such a veto is not provided for in the Constitution, statutory law, or over 200 years of Senate precedent. That's why the Democrats had to invent it.
"But I think generally speaking, the constitution — I'm different in this regard as far as this group [of Senate Republicans seeking compromise]. For two years now I've been saying that the filibuster is an unconstitutional way to give advice and consent. The advice and consent clause has for 200 years been vote your conscience, tell the president how you feel by voting. And it's a majority vote requirement, and the Senate rules always have to give way to the Constitution." — Republican Sen. Lindsey Graham appearing on CNN's Sunday Late Edition with Wolf Blitzer May 22, 2005.
We offer below a strategy, based on our original analysis of the Constitution, to deny constitutional legitimacy to all judicial filibusters — and in fact to all filibusters of Executive Branch nominees. The counterculture Republican would-be compromisers in the highly publicized Gang of Fourteen "moderates" were simply appeasing the minority Democrats in their effort to subvert the Constitution and overthrow more than two centuries of precedent and more than 100 different elected congresses during which the judicial filibuster was never used. These renegade Republicans were embarked on a thoroughly misguided effort to preserve a procedure that sings a seductive siren song of moderation and compromise but is both radically undemocratic and demonstrably contrary to the most fundamental provisions of the Constitution. By claiming to seek compromise with the Democrats, the counter-constitutional Republicans actually make a constitutional resolution impossible. These holdouts bought-into the Democrats' propaganda that: (a) judicial filibusters are an important instrument, and protection, for the minority, and are not in conflict with the Constitution; (b) the minority party just happens to be the Democrats right now but not many years hence it will likely be Republicans who find themselves in the minority and it will be their minority rights that will need protecting; and (c) judicial filibusters protect judicial nominations from the influence of extremist special interest groups, especially the religious conservatives feared and despised no less by some of these Republican nail-biters than they are by the Democrats; (d) the notion that the Senate's Rules are sacrosanct and inviolable, not subject to external review, the Constitution be damned.
The Democrats' massive usurpation of the president's executive authority to appoint federal judges to fill vacancies represents an no-holds-barred Democratic Party assault on the constitutional separation of powers using judicial filibusters as the blunt instrument of choice.
The judicial filibuster was used for the first time in U. S. history during President Bush's first term in office. The Democrats' attempted power grab principally arose out of their contempt for the views of a majority of Americans who are seeking to uphold religious principles and traditional moral, educational, and cultural values. There is not a single dissenting voice among the refractory Senate Democrats to speak unequivocally in defense of the clearly expressed intent of the Constitution and the Founders on the matter of judicial confirmation votes, though a scant few offer lip service.
The power of the president to appoint federal judges and to make any number of executive branch appointments, prescribed as it is in Article II, Section 2 of the Constitution, is subject to the Senate's advice and consent by a specified simple majority vote of 51 out of 100 Senators. The Senate Democrats' attempt to raise the number to 60, stated openly, often and unashamedly even though the Constitution is clear in its simple majority numerical requirement, is a clear violation.
Subjection of the Senate's Rules to the Constitution itself is not a proper subject for negotiation, bargaining or compromise — at least not without compromising the integrity of the Constitution itself. This is why the fight over judicial nominees must, and will, be fought to the end without ever reaching a compromise. The showdown may or may not occur over the Alito nomination, but it will occur eventually in any case.
The history of the filibuster is a study in the perils of congressional rule-making, and the unintended consequences of imprecision and error. Ironically, the filibuster per se appears to have been the product of a legislative error that occurred when in 1806 the Senate in forming its rules inadvertently failed to provide a mechanism for compelling an end to debate before voting. Theoretically, at least, this permitted interminable debate on any measure and thus gave rise to the practice known as the filibuster. As a practical matter, filibusters as "legislation busters" did not occur in the Senate until the late 1830's and only gained currency during the last half of the nineteenth century and especially the latter part of the 20th century. It should be noted that filibusters are not merely extended speeches for the purpose of delay. Strictly speaking, they are designed to permanently kill the matter under consideration.
The judicial filibuster of today is the product of the same sort of sloppiness in rule-writing that characterized the origin of the filibuster itself in the early 19th century. Intending its regulation of debates to be used exclusively for legislative purposes and never imagining that it would be applied to judicial nominations, the Senate established Rule # XXII which covers extended debate and filibusters. This Rule requires a supermajority to invoke cloture on legislative matters. It was never envisioned as applicable to nominees and its failure to exclude judicial filibusters was clearly an oversight. Democrats took advantage of the loophole in the Rules for the first time in 2003 to begin filibustering President Bush's judicial nominees.
There is a perfectly good reason why the judicial filibuster had never been used in the history of the U. S. Senate until just a few years ago: it is unconstitutional and it is philosophically inconsistent with the nature and role of the Senate in providing advice and consent on presidential nominees.
The Senate has always regarded its advice and consent role as requiring a simple majority (51 of 100 Senators) to approve presidential nominations, including nominations of federal judges. The judicial filibuster effectively raises that bar to a higher vote level (requiring 60 of 100 Senators) for approval of judicial nominees.
The judicial filibuster was invented, or discovered, by a radical activist group of Senate Democrats and their outside activist allies concerned about moves by moral traditionalists and conservatives Christians to mount a defense against unelected liberal judges who for many decades have been legislating from the bench. In contravention of the constitution and the Founders' intent, activist judges have been issuing a continuous stream of rulings that have severely constrained freedom, coarsened American culture, expelled religion from the schools and the marketplace, and undercut the traditional moral and religious values conservatives, and most Americans, regard as central to the maintenance of stable families and communities. At the same time high-handed judges have been encouraging indecency and sexual immorality, dismantling the structures and protections that support family life, and have failed to protect the right to life of all Americans. In the guise of promoting civil liberties they have been conducting unscientific social engineering experiments many of which have failed or backfired to the detriment of the American family and the social order. Beginning in the 1960's, a decline in many of America's great cities, a broken criminal justice system, a failed education system, and a wide array of other social pathologies were in large measure attributed to liberal judicial activism. Judges legislating from the bench began subverting parental rights, imposing unreasonable restrictions on the police, prisons, and immigration authorities, as well as on citizens' right to own guns. Judicial leniency led to a commensurate increase in crime, decline in the schools.
In response to the chaos engendered by liberal policies, the conservative political and religious movements have grown rapidly over the last few decades and largely through the efforts of its conservative base the Republican Party has been ascendant in the Congress. Frustratingly, control of the presidency, the House of Representatives, the Senate and many state and local offices has failed to accomplish much of what matters most to an increasingly conservative American electorate. Ultimately, the explanation comes down to arrogant judges who ignore the Constitution, the Founders' original intent, and strike rational laws enacted by Congress and the states — substituting the judge's own will for that of the people as expressed through their elected representatives. At the same time, judges arbitrarily invent rights and obligations that lack any foundation in the Constitution and impose them on the people. The net effect of all of this is to paralyze and deny the electorate's will and its ability to maintain and restore traditional values in society. Instead the courts appear to be doing everything they can to perpetuate and even aggravate the social pathologies of most concern to the public.
Sen. Robert Byrd, the judicial filibuster's intellectual frontman in the Senate, and the rest of the Senate Democrats' leadership are attempting nothing less than a wholesale hijacking of the Constitution of the United States to advance a scheme designed to block the legitimate power of the president to nominate judges to the federal courts as prescribed by the Constitution itself. The mechanism they are using is the judicial filibuster by means of which Republicans are compelled to obtain supermajority votes to invoke cloture, end debate and compel an up-or-down simple majority vote.
Many times in the past, activists in the Democratic Party, both in the Congress and in the judiciary, have demonstrated their willingness to violate the Constitution based on their mysterious power to perceive "penumbras, formed by emanations" out of the U.S. Constitution. The most egregious example of this was the United States Supreme Court's 1973 discovery that the right to abortions emanated from the Constitution's guarantee of a right to privacy.
The Senate Democrats' sleight of hand and other trickery in manipulating Senate Rules to utilize judicial filibusters is merely a further and more extreme extension of their relentless effort to impose judicial tyranny upon this country to facilitate the dismantling of the traditional moral and intellectual values on which this country has always been based.
CONSTITUTIONAL CONSTRAINTS ON SENATE RULES
The Constitution in Article I, Section 5 unequivocally directs the Senate to establish its own Rules for fulfilling its constitutional responsibilities. The various laws, precedents and procedures devised by the Senate are enshrined in a set of Senate Rules that govern the most important aspects of Senate operations.
There is significant confusion over the constitutional status of these Senate Rules among both Senators and scholars of the Senate and the constitution. This is in large measure responsible for a widespread misconception that has gained favor among not a few Senate Democrats, led by the inventive Sen. Byrd, as well as members of the mainstream media.
The MSM and Democrats uncritically adopt the entirely mistaken notion that by virtue of this Constitutional grant of the rule-making power, the Senate may arbitrarily create any Rules it likes, without qualification or limitation. From this they draw the dubious inference that this rule-making authority literally permits them to run the Senate in any way the Senators like, with absolutely no external constraints. Byrd and his colleagues have aggressively propagated the altogether specious and unfounded notion that Senators are not answerable to any external authority regarding Senate Rules, and that the preservation of these Rules, and the prerogative to invent them and amend them arbitrarily, is the exclusive responsibility of the members of that august body.
In one very limited sense the constitutional separation of powers between the three branches precludes the other branches of government from interfering with the Senate's internal rule-making. Yet there are two outside authorities to which Sen. Byrd, the Democrats, and the entire Senate are permanently answerable, and those are, first, the Constitution itself and, second, the duly enacted laws of the United States. The Senate's rule-making authority is limited by the fact that it may not create Senate Rules violative of either federal law or the Constitution.
It would seem to be obvious that, when the Constitution says that the Senate may create its own Rules, this does not authorize the Senate to create Rules that conflict with the Constitution itself. To carry the reasoning to its logical extreme, were the Senate granted the absolutely unlimited right to create Rules for its own governance, then this would legitimate a Senate Rule authorizing Senators to commit crimes, usurp the powers of the presidency and the judiciary, commit treasonous acts, or otherwise subvert the Constitution. The Senate might then arrogate to itself the powers of the judicial branch or the presidency itself, and appoint judges on its own, ignoring the president's nominees altogether.
This in fact is the kind of absolute autonomy and control over Senate Rules the Democrats are pursuing, consistent with the Byrd interpretation. In asserting congressional control over Congress's affairs, the late House Speaker Sam Raeburn (1882-1961) used to say, "The President proposes, and the Congress disposes." In connection with the current battle over judicial nominations, the intentions of Sen. Byrd and his fellow Democrats can be discerned in their parroting of this phrase and in the hard turn they give to it. Lest anyone imagine that what they are claiming is synonymous with the Constitution's advice and consent clause, we need only consult Byrd's fellow Democrat, Sen. Joe Biden, explaining, "The president can propose. The Senate disposes.... If you go by majority vote up there, what people don't realize is, there are 54 Republican senators. We 46 Democrats represent more of people in America than the 54 of them. You want to do this by majority rule, popular will? That's not what the Senate is about." [MSNBC, Hardball, April 28, 2005]
Sen. Byrd adds his own twist:
The framers allowed the executive branch only to propose; it was left to the Senate to dispose. There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent.President Bush incorrectly — incorrectly — maintains that each nominee for a federal judgeship is entitled to an up-or-down vote. The Constitution does not say that. I say the Constitution itself does not say that each nominee is entitled to an up-or-down vote. The Constitution doesn't say that. It doesn't even say that there has to be a vote with respect to the giving of its consent. The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing. In Section 2, Article II, it says, "And by and with the advice and consent of the Senate, he shall appoint ambassadors, judges of the Supreme Court and all other officers of the United States." — Center for American Progress, April 25, 2005
"What the Senate is about," according to Kerry, Kennedy, Hillary and the other radical counter-constitutionalists among the Senate Democrats now leading the pro-filibuster fight, is nothing less than subverting the Constitution by asserting the power of the Senate to arbitrarily formulate Senate Rules even if they directly conflict with the Constitution. They contend that the Senate minority may cause the Senate to act as it will, to act or not act, to vote or not vote — regardless of what the Constitution says on the matter.
ORIGINAL ANALYSIS: SENATE "JUDGES" CONDUCT SENATE "TRIALS"
In Federalist No. 78, Alexander Hamilton said of the judiciary, "It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." This dictum may be applied with equal justice to the Senate in fulfilling its advice and consent role by judging the fitness of judicial nominees.
Based on our analysis of the Founders' intent in designing the several branches of government we conclude the following: When, in accordance with the Constitution, Senators provide advice and consent on any presidential nominee, they are themselves acting in the capacity of judges. This is not an altogether isolated responsibility. The Constitution expressly provides for the Senate to conduct trials and for Senators to serve as prosecutors, judges, and juries. When there is an impeachment, members of the Senate conduct trials present the prosecution case, and vote as jurors. This was witnessed recently in the impeachment of former President Clinton.
Philosophically, it helps to understand that in providing advice and consent on the president's nominees, the Senate is in effect conducting a trial, as prescribed by the Constitution, with the Senators serving as judges. Construing the role of the Senate as conducting a trial is the only way to make sense of its advice and consent function.
In the end, and after due deliberation, the Senators' primary role in such cases is simply to vote in the same way that a panel of judges would vote (or as a civil case jury would vote), with a fixed and inviolable number or proportion of votes needed for a decision to be rendered.
Virtually every panel of appellate-level judges decides cases by a simple majority, including the Supreme Court. The judges on such a panel might desire to exercise "free will," and demonstrate "power" in the Hamiltonian sense of the term, by arbitrarily inventing a new set of "Judicial Rules" hiking the number of votes required to decide a case up to 60 per cent, or 75 per cent, or 90 per cent, or even unanimity. Yet they would be forbidden to do so without proper constitutional or statutory authorization. It is this to which Hamilton is referring with his "neither force nor will." The Constitution does not permit the appellate courts, or the Senators, either the will or the power to make such changes on their own authority.
In providing its advice and consent on judicial nominees, the Senate must render its decision just as courts must decide. Since the Senate is answerable to a higher authority, it must do so in a manner consistent with the Constitution and the laws of the nation.
One of the most potent arguments advanced by Senate Democrats and their activist supporters in progressive organizations and the MSM in defense of the filibuster is the mistaken notion that blocking judicial nominees in the Judiciary Committee is the moral, political, and legislative equivalent of the judicial filibuster. Since this committee maneuver is legitimate, they argue, it follows that filibusters on the floor of the Senate are legitimate as well.
According to our analysis, this represents a fundamental misunderstanding of the role of the Judiciary Committee and the history of its formation.
The present congressional Committee structure was not part of the Constitution and was not envisioned by the Founders. Committees such as Judiciary Committee were first formed in 1816 by the resolution of the Senate itself and according to the official "History of the Committee on the Judiciary, Unites States Senate" (1982) the first assignments to the Committee were made on December 13, 1816. It was only sometime later that judicial nominees were referred to the Judiciary Committee and even then it was only done on an occasional basis.
Only in 1868 did the Senate decide that all nominations would be referred to Committee rather than directly to the entire Senate for a vote. Until then, only a minority went to the Committee and many nominations were reviewed in secret.
Looking back, it appears obvious to us that the philosophy behind referrals to the Judiciary Committee were first made on the theory that it is nothing less than a microcosm of the Senate as a whole. Senate associate historian Don Ritchie appeared to agree with this proposition, characterizing the Senate Committees as a "surrogate" for the Senate as a whole. Consistent with our theory of the Senate's role as analogous to a court when deciding on presidential nominations, the Judiciary Committee requires no more than a simple majority vote to recommend nominations to the full Senate for a floor vote. The majority party gets the opportunity to appoint a majority of the Senators on the Judiciary Committee and has the same power to provide majority advice and consent that is evident in the full Senate.
SENATORS AS "JUDGES" ON THE JUDICIARY COMMITTEE: GOOD FAITH
Just as courts have mistrials, summary judgments, and cases are thrown out on technicalities, so is it possible for presidential nominations to be aborted in the Senate Judiciary Committee due to a president withdrawing the nominations, Blue Slips, Holds or other efforts that have the effect of blocking nominations in the Judiciary Committee. As a result, the Senate may not get a chance to vote on a presidential nominee to the bench.
The likelihood of a nominee being blocked in the Judiciary Committee is greatly increased if the president and the majority in the Senate are of different parties, as occurred at the end of President Clinton's term where a large number of nominees for one reason or another failed to make their way to the Senate floor for a vote. If the majority of the members of the Judiciary Committee vote against, or otherwise reject a nominee, then this is a constitutionally legitimate method of rejection. The Judiciary Committee is merely acting as a surrogate for the entire Senate and voting the judicial nominee up-or-down by simple majority vote.
The potential problem arises when judicial nominees are deprived of a vote in the Judiciary Committee. It seems to us that there is a "good faith" obligation to be invoked here which obliges Senators to act in good faith when they decide on a nominee. If there is to be a delay in holding a Judiciary Committee vote on a nominee, then any such delaying action should be done in good faith, not merely with the intent of delaying for delaying's sake. In fulfilling responsibilities such as providing advice and consent on judicial nominees, the Judiciary Committee no less than the full Senate must follow the Hamiltonian dictum and act as if it were devoid of any will or power of its own. It should not be rushed any more than a court should be rushed. It should investigate thoroughly just as a court would investigate. But it should not delay unnecessarily.
JUDICIAL NOMINEES: A PRESIDENTIAL PREROGATIVE
The significance of the foregoing is that such appointments, whether to Executive Branch posts or seats on the federal judiciary, are the exclusive province of the president. He alone develops a selection process and in a manner consistent with the Constitution chooses individuals who in his opinion are best qualified and most suited to the position. Surprisingly, several leading Democrats from Rahm Emanuel to Barack Obama have agreed with this viewpoint. "George Bush won," said Emanuel. "If you don't like it," he added, "you better win elections." On ABC's Stephanopoulos show this Sunday, Obama criticised his fellow Senate Democrats for their reliance on "procedural maneuvers" such as filibusters to block judicial nominees. "These last-minute efforts using procedural maneuvers ... has been the wrong way of going about it." Obama demonstrated that he is clearly not a man of principle: he stated that he plans to support today's filibuster attempt as will Feinstein, Biden and possibly others who had initially opposed it on similar grounds. According to our theory, the president is the only true agent, possessing both a will and the power to use that will, making choices with the freedom to select anyone he believes will both pass constitutional muster and best fit and fill the office to which nominated. Once he exercises his will and power to choose, and the Senate approves (or not), then he is answerable to nobody else. The only unqualified exception to his autonomy is that, in the ultimate sense envisioned in the Constitution, if the electorate concludes that he has been nominating unqualified judges, or that his Senate-approved nominees are not deciding cases in a manner consistent with the Constitution, it may opt to vote him and his party out of office. Elected officials, unlike federal judges, are answerable to the people through elections.
The Senate has neither the freedom of will nor the power granted to the President because according to the Constitution it is not a volitionally free agent. The Senate's role is merely to confirm or reject, vote up-or-down, rather than interfere with the president's decision-making power.
Certainly the Senate may make its own Senate Rules concerning how to conduct investigations and how to evaluate the qualifications of the candidate. It may choose the date on which the vote will take place. It may choose the location. In fact, the Senators may make any Rules they like and still remain true to the Constitution as long as those Senate Rules do not violate the Constitution or other federal laws.
About this the Constitution is clear: The Constitution's grant of rule-making authority to the Senate, with respect to judicial nominations, does not extend beyond voting to either consent, or not. Filibuster strategist Sen. Byrd and his fellow Democrats' claims to the contrary notwithstanding, what is available to the Senate is only the up-or-down vote by simple majority; nothing more and nothing less. The Senate may not amend this voting authority by changing the simple majority requirement, nor may it evade this responsibility to vote. It must provide the up-or down vote called for in the Constitution. To endeavor to escape, by any means or for any reason, is itself a violation of the Constitution.
Speaker Raeburn's formulation, that the President proposes and Congress disposes, may be construed narrowly or broadly. In its narrow interpretation it may be applied legitimately to judicial nominees as meaning an up-or-down vote by means of a simple majority. But it is constructed in such a way as to lend itself to misinterpretation when conceived broadly. Taken expansively, particularly in connection with judicial nominees (in fact, with all nominees of the president), it is patently violative of the Constitutional prescriptions on advice and consent. Sen. Byrd and his fellow Senate Democrats have clearly chosen an extreme, broad, and unconstitutional interpretation of the Raeburn dictum.
It is worth noting another distinction here, this one between the Senate's action on nominees and its role in considering legislation.
Philosophically, appropriations or other legislative matters are subject to compromise, budgets can be adjusted, portions of appropriations can be eliminated, projects can be stripped-down. Judicial nominees are indivisible human beings with training, families, careers and aspirations and, as such, cannot be bargained, cannot be cut in half, cannot be augmented or reduced by percentages.
There is no room in the Constitution for the sort of "compromise" on nominees that many Senate Democrats are pursuing. Last May, when the filibuster argument fully surfaced, the Senate Minority Leader, Sen. Harry Reid extended to the majority an offer to approve a few of the president's filibustered appellate-leve judicial nominees among the ones he claimed were unqualified, in addition to those he agreed were qualified. The Rules of the Senate are not permitted by the Constitution to be turned into a Chinese menu, with a few from Column A, plus a few from Column B, in which are included several purportedly unqualified judicial extremists. By no means does the Constitution permit what the Democrats were attempting, namely, to subvert the Constitution by claiming to improve on it by making it more fair and more sensitive to a set of fictitious minority rights. Raeburn's "disposes" is unconstitutional if it requires will and power or anything more than an up-or-down vote. (The Senate Democrats understand full well that modifying Senate Rules ordinarily requires a two-thirds majority. They object to the "constitutional option" on judicial filibusters because it circumvents that requirement, and yet they blithely seek to radically amend what the Constitution itself requires without adhering to the rules for enacting Constitutional amendments.)
This is made even clearer when we address the next question: whether, as Sen. Byrd and some his fellow Democrats claim, the Senate may create or amend or reinterpret a Senate Rule on filibusters effectively upping the Constitutional simple majority requirement for approving judges to a three-fifths supermajority (60 of 100 Senators).
The Constitution does require supermajorities for a limited number of votes on matters such as approving treaties, overriding presidential vetoes, or changing the Constitution itself by means of a Constitutional amendment.
COMPROMISING THE CONSTITUTION
Constitutional scholars-in-service-to-the-Democratic Party such as George Washington University political science professor Sarah Binder, may claim:
Republicans' constitutional reasoning ignores critical features of the Constitution. The framers of the Constitution provided clear instructions in Article 1, Section 5 that each chamber would be empowered to write its own rules. Except for the seven instances for which the Constitution stipulates supermajorities for passage, the rule-making clause applies. The Senate can set whatever rules it wishes for carrying out its responsibilities of advice and consent. Requiring supermajorities to end debate on nominations is certainly constitutional. After all, the Senate requires only a simple majority for the actual vote on confirmation.
Yet Professor Binder herself "ignores" several of the most salient facts concerning the constitutionality of filibustering judicial nominees: (1) she "ignores" the fact that while Bill Clinton was President of the U. S. she vigorously opposed filibustering judicial nominees, though now that Bush 43 is President she is one of the biggest supporters of judicial filibusters (justifying her intellectual transformation based on what, as recently as this past week in an appearance on c-span, she termed political "situational ethics;" (2) in the statement quoted above, Binder is intentionally misleading in claiming that the Senate is permitted to create any Rules it wants, since clearly the Senate may not create Rules that conflict with the U. S. Constitution or federal law; and (3) Binder conveniently overlooks the fact that the precedent set by the United States Supreme Court in Ballin (1892) established that, for all Senate votes mandated by the Constitution, there is a default value of a simple majority such that, unless the Constitution specifies a number to the contrary (which it does in some of the examples mentioned earlier, but does not for judicial filibusters), it is impermissible for any constitutionally mandated votes such as those on judicial nominees to require anything other than a simple majority. It is therefore not altogether surprising that no nominee ever given a vote on the floor of the Senate has failed to be approved for lack of a supermajority. The simple majority vote has sufficed for all votes on nominees since the founding of the country — even during the period since the Senate Democrats began filibustering judicial nominees in 2003.
The Democrats invented the judicial filibuster a a few years ago on the basis of their creative reinterpretation of Senate Rule # XXII. Since then they have maintained that this Rule permits filibusters on any matter before the Senate, without limitation or restriction.
Given the foregoing analysis demonstrating the unconstitutionality of the judicial filibuster, then, there remain two possibilities: (1) The entire Senate Rule governing filibusters is unconstitutional since as interpreted it violates the advice and consent clause and the simple majority prescribed as the default value therein; or (2) the Democrats are acting unconstitutionally in their bending Rule # XXII to include the right of the minority to filibuster judicial nominees. In either case, the Democrats use of judicial filibusters is absolutely unconstitutional.
Why did the Constitution provide for the president to choose judges and the Senate to merely provide advice and consent? — The answer is too complex to review and analyze here in great depth, but summarized briefly: The Founders envisioned the president as selecting the most qualified individuals to serve as judges, expecting that the chief executive of the country would choose those who suit his temperament and philosophy while at the same time maintaining a strict allegiance to the Constitution. The president is answerable to the people because his term of office is relatively short, being midway between those of Representatives and Senators, and he (or some other member of his party) must run for the next election. If he selects poorly, or his judicial choices are too skewed in one direction or another, then the electorate will have the option to replace him with a person who holds a contrasting judicial philosophy vested with the authority to appoint judges that he considers constitutionally qualified, and who share his differing interpretation of the Constitution. Apart from the Senate's executing its advice and consent function by simple majority vote, then, this is the only limitation on the president's judicial choices. Some of the Democrats in the Senate may think that what the Constitution specifies is unwise, unjust, or improper, and needs to be "corrected" to better reflect minority rights, the balance of power, or just plain fairness. But that is what the Constitution says, and the only way to get around this fact would be to amend the Constitution itself.
Concerning what the Constitution has to say on judicial nominees, the simple majority vote is the end of it. There is nothing more, nothing less, that is acceptable. Try as they will, the Senate Democrats even with the acquiescence of the Republican compromisers cannot manipulate Senate Rules to "improve" on the Constitution.
It is often said that everyone has a right to his own opinions, but not his own facts. And this certainly is applicable to the Democrats' unconstitutional use of the judicial filibuster. For with equal rightness we may observe, Every Senate has the right to make its own Rules, but not its own Constitution.
© Sherry & Steven Eros
"Is it asking too much that the President's nominees for lifetime appointments to the federal courts at least get the support of 60 of 100 senators?" — Sen. Joe Lieberman on ABC's This Week, on Sunday, May 22, 2005
"These last-minute efforts using procedural maneuvers ... has been the wrong way of going about it." — Sen. Barack Obama on ABC's This Week, on Sunday, Jan 29, 2006
Senate Democrats just can't understand why Republicans object to judicial filibusters requiring 60 votes to approve President Bush's nominees. They have controlled the Senate for so many decades they find it impossible to adjust themselves to minority status. They demand the right to interpret, expand, and contract the Senate's Rules to suit their whims.
An analysis of the Democrats' use of the judicial filibuster reveals that it is not only unconstitutional but conflicts with the role of the Senate as conceived in the United States Constitution.
Now that the Democrats seem to be more or less permanently locked into minority status in the Senate, they cannot comprehend why the Constitution has to stand in the way of a special new class of Senate "minority rights" to allow them to protect the world against President Bush's depredations. Oblivious to the way the Constitution narrowly circumscribes the roles of the majority and the minority in the Senate, the Democrats seek to redefine "minority rights" as "minority control" and "minority veto power" over everything done by the majority in the Senate.
The Democrats' filibuster of President Bush's judicial nominees amounts to nothing short of a legislative minority's assault on the constitutionally granted rights of the Senate majority. Out of the Senate Rules the Democrats have invented the fictitious right to judicial filibusters and have utilized this tactical maneuver as if the Constitution grants the minority veto power over the president's judicial nominees. Such a veto is not provided for in the Constitution, statutory law, or over 200 years of Senate precedent. That's why the Democrats had to invent it.
"But I think generally speaking, the constitution — I'm different in this regard as far as this group [of Senate Republicans seeking compromise]. For two years now I've been saying that the filibuster is an unconstitutional way to give advice and consent. The advice and consent clause has for 200 years been vote your conscience, tell the president how you feel by voting. And it's a majority vote requirement, and the Senate rules always have to give way to the Constitution." — Republican Sen. Lindsey Graham appearing on CNN's Sunday Late Edition with Wolf Blitzer May 22, 2005.
We offer below a strategy, based on our original analysis of the Constitution, to deny constitutional legitimacy to all judicial filibusters — and in fact to all filibusters of Executive Branch nominees. The counterculture Republican would-be compromisers in the highly publicized Gang of Fourteen "moderates" were simply appeasing the minority Democrats in their effort to subvert the Constitution and overthrow more than two centuries of precedent and more than 100 different elected congresses during which the judicial filibuster was never used. These renegade Republicans were embarked on a thoroughly misguided effort to preserve a procedure that sings a seductive siren song of moderation and compromise but is both radically undemocratic and demonstrably contrary to the most fundamental provisions of the Constitution. By claiming to seek compromise with the Democrats, the counter-constitutional Republicans actually make a constitutional resolution impossible. These holdouts bought-into the Democrats' propaganda that: (a) judicial filibusters are an important instrument, and protection, for the minority, and are not in conflict with the Constitution; (b) the minority party just happens to be the Democrats right now but not many years hence it will likely be Republicans who find themselves in the minority and it will be their minority rights that will need protecting; and (c) judicial filibusters protect judicial nominations from the influence of extremist special interest groups, especially the religious conservatives feared and despised no less by some of these Republican nail-biters than they are by the Democrats; (d) the notion that the Senate's Rules are sacrosanct and inviolable, not subject to external review, the Constitution be damned.
The Democrats' massive usurpation of the president's executive authority to appoint federal judges to fill vacancies represents an no-holds-barred Democratic Party assault on the constitutional separation of powers using judicial filibusters as the blunt instrument of choice.
The judicial filibuster was used for the first time in U. S. history during President Bush's first term in office. The Democrats' attempted power grab principally arose out of their contempt for the views of a majority of Americans who are seeking to uphold religious principles and traditional moral, educational, and cultural values. There is not a single dissenting voice among the refractory Senate Democrats to speak unequivocally in defense of the clearly expressed intent of the Constitution and the Founders on the matter of judicial confirmation votes, though a scant few offer lip service.
The power of the president to appoint federal judges and to make any number of executive branch appointments, prescribed as it is in Article II, Section 2 of the Constitution, is subject to the Senate's advice and consent by a specified simple majority vote of 51 out of 100 Senators. The Senate Democrats' attempt to raise the number to 60, stated openly, often and unashamedly even though the Constitution is clear in its simple majority numerical requirement, is a clear violation.
Subjection of the Senate's Rules to the Constitution itself is not a proper subject for negotiation, bargaining or compromise — at least not without compromising the integrity of the Constitution itself. This is why the fight over judicial nominees must, and will, be fought to the end without ever reaching a compromise. The showdown may or may not occur over the Alito nomination, but it will occur eventually in any case.
The history of the filibuster is a study in the perils of congressional rule-making, and the unintended consequences of imprecision and error. Ironically, the filibuster per se appears to have been the product of a legislative error that occurred when in 1806 the Senate in forming its rules inadvertently failed to provide a mechanism for compelling an end to debate before voting. Theoretically, at least, this permitted interminable debate on any measure and thus gave rise to the practice known as the filibuster. As a practical matter, filibusters as "legislation busters" did not occur in the Senate until the late 1830's and only gained currency during the last half of the nineteenth century and especially the latter part of the 20th century. It should be noted that filibusters are not merely extended speeches for the purpose of delay. Strictly speaking, they are designed to permanently kill the matter under consideration.
The judicial filibuster of today is the product of the same sort of sloppiness in rule-writing that characterized the origin of the filibuster itself in the early 19th century. Intending its regulation of debates to be used exclusively for legislative purposes and never imagining that it would be applied to judicial nominations, the Senate established Rule # XXII which covers extended debate and filibusters. This Rule requires a supermajority to invoke cloture on legislative matters. It was never envisioned as applicable to nominees and its failure to exclude judicial filibusters was clearly an oversight. Democrats took advantage of the loophole in the Rules for the first time in 2003 to begin filibustering President Bush's judicial nominees.
There is a perfectly good reason why the judicial filibuster had never been used in the history of the U. S. Senate until just a few years ago: it is unconstitutional and it is philosophically inconsistent with the nature and role of the Senate in providing advice and consent on presidential nominees.
The Senate has always regarded its advice and consent role as requiring a simple majority (51 of 100 Senators) to approve presidential nominations, including nominations of federal judges. The judicial filibuster effectively raises that bar to a higher vote level (requiring 60 of 100 Senators) for approval of judicial nominees.
The judicial filibuster was invented, or discovered, by a radical activist group of Senate Democrats and their outside activist allies concerned about moves by moral traditionalists and conservatives Christians to mount a defense against unelected liberal judges who for many decades have been legislating from the bench. In contravention of the constitution and the Founders' intent, activist judges have been issuing a continuous stream of rulings that have severely constrained freedom, coarsened American culture, expelled religion from the schools and the marketplace, and undercut the traditional moral and religious values conservatives, and most Americans, regard as central to the maintenance of stable families and communities. At the same time high-handed judges have been encouraging indecency and sexual immorality, dismantling the structures and protections that support family life, and have failed to protect the right to life of all Americans. In the guise of promoting civil liberties they have been conducting unscientific social engineering experiments many of which have failed or backfired to the detriment of the American family and the social order. Beginning in the 1960's, a decline in many of America's great cities, a broken criminal justice system, a failed education system, and a wide array of other social pathologies were in large measure attributed to liberal judicial activism. Judges legislating from the bench began subverting parental rights, imposing unreasonable restrictions on the police, prisons, and immigration authorities, as well as on citizens' right to own guns. Judicial leniency led to a commensurate increase in crime, decline in the schools.
In response to the chaos engendered by liberal policies, the conservative political and religious movements have grown rapidly over the last few decades and largely through the efforts of its conservative base the Republican Party has been ascendant in the Congress. Frustratingly, control of the presidency, the House of Representatives, the Senate and many state and local offices has failed to accomplish much of what matters most to an increasingly conservative American electorate. Ultimately, the explanation comes down to arrogant judges who ignore the Constitution, the Founders' original intent, and strike rational laws enacted by Congress and the states — substituting the judge's own will for that of the people as expressed through their elected representatives. At the same time, judges arbitrarily invent rights and obligations that lack any foundation in the Constitution and impose them on the people. The net effect of all of this is to paralyze and deny the electorate's will and its ability to maintain and restore traditional values in society. Instead the courts appear to be doing everything they can to perpetuate and even aggravate the social pathologies of most concern to the public.
Sen. Robert Byrd, the judicial filibuster's intellectual frontman in the Senate, and the rest of the Senate Democrats' leadership are attempting nothing less than a wholesale hijacking of the Constitution of the United States to advance a scheme designed to block the legitimate power of the president to nominate judges to the federal courts as prescribed by the Constitution itself. The mechanism they are using is the judicial filibuster by means of which Republicans are compelled to obtain supermajority votes to invoke cloture, end debate and compel an up-or-down simple majority vote.
Many times in the past, activists in the Democratic Party, both in the Congress and in the judiciary, have demonstrated their willingness to violate the Constitution based on their mysterious power to perceive "penumbras, formed by emanations" out of the U.S. Constitution. The most egregious example of this was the United States Supreme Court's 1973 discovery that the right to abortions emanated from the Constitution's guarantee of a right to privacy.
The Senate Democrats' sleight of hand and other trickery in manipulating Senate Rules to utilize judicial filibusters is merely a further and more extreme extension of their relentless effort to impose judicial tyranny upon this country to facilitate the dismantling of the traditional moral and intellectual values on which this country has always been based.
CONSTITUTIONAL CONSTRAINTS ON SENATE RULES
The Constitution in Article I, Section 5 unequivocally directs the Senate to establish its own Rules for fulfilling its constitutional responsibilities. The various laws, precedents and procedures devised by the Senate are enshrined in a set of Senate Rules that govern the most important aspects of Senate operations.
There is significant confusion over the constitutional status of these Senate Rules among both Senators and scholars of the Senate and the constitution. This is in large measure responsible for a widespread misconception that has gained favor among not a few Senate Democrats, led by the inventive Sen. Byrd, as well as members of the mainstream media.
The MSM and Democrats uncritically adopt the entirely mistaken notion that by virtue of this Constitutional grant of the rule-making power, the Senate may arbitrarily create any Rules it likes, without qualification or limitation. From this they draw the dubious inference that this rule-making authority literally permits them to run the Senate in any way the Senators like, with absolutely no external constraints. Byrd and his colleagues have aggressively propagated the altogether specious and unfounded notion that Senators are not answerable to any external authority regarding Senate Rules, and that the preservation of these Rules, and the prerogative to invent them and amend them arbitrarily, is the exclusive responsibility of the members of that august body.
In one very limited sense the constitutional separation of powers between the three branches precludes the other branches of government from interfering with the Senate's internal rule-making. Yet there are two outside authorities to which Sen. Byrd, the Democrats, and the entire Senate are permanently answerable, and those are, first, the Constitution itself and, second, the duly enacted laws of the United States. The Senate's rule-making authority is limited by the fact that it may not create Senate Rules violative of either federal law or the Constitution.
It would seem to be obvious that, when the Constitution says that the Senate may create its own Rules, this does not authorize the Senate to create Rules that conflict with the Constitution itself. To carry the reasoning to its logical extreme, were the Senate granted the absolutely unlimited right to create Rules for its own governance, then this would legitimate a Senate Rule authorizing Senators to commit crimes, usurp the powers of the presidency and the judiciary, commit treasonous acts, or otherwise subvert the Constitution. The Senate might then arrogate to itself the powers of the judicial branch or the presidency itself, and appoint judges on its own, ignoring the president's nominees altogether.
This in fact is the kind of absolute autonomy and control over Senate Rules the Democrats are pursuing, consistent with the Byrd interpretation. In asserting congressional control over Congress's affairs, the late House Speaker Sam Raeburn (1882-1961) used to say, "The President proposes, and the Congress disposes." In connection with the current battle over judicial nominations, the intentions of Sen. Byrd and his fellow Democrats can be discerned in their parroting of this phrase and in the hard turn they give to it. Lest anyone imagine that what they are claiming is synonymous with the Constitution's advice and consent clause, we need only consult Byrd's fellow Democrat, Sen. Joe Biden, explaining, "The president can propose. The Senate disposes.... If you go by majority vote up there, what people don't realize is, there are 54 Republican senators. We 46 Democrats represent more of people in America than the 54 of them. You want to do this by majority rule, popular will? That's not what the Senate is about." [MSNBC, Hardball, April 28, 2005]
Sen. Byrd adds his own twist:
The framers allowed the executive branch only to propose; it was left to the Senate to dispose. There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent.President Bush incorrectly — incorrectly — maintains that each nominee for a federal judgeship is entitled to an up-or-down vote. The Constitution does not say that. I say the Constitution itself does not say that each nominee is entitled to an up-or-down vote. The Constitution doesn't say that. It doesn't even say that there has to be a vote with respect to the giving of its consent. The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing. In Section 2, Article II, it says, "And by and with the advice and consent of the Senate, he shall appoint ambassadors, judges of the Supreme Court and all other officers of the United States." — Center for American Progress, April 25, 2005
"What the Senate is about," according to Kerry, Kennedy, Hillary and the other radical counter-constitutionalists among the Senate Democrats now leading the pro-filibuster fight, is nothing less than subverting the Constitution by asserting the power of the Senate to arbitrarily formulate Senate Rules even if they directly conflict with the Constitution. They contend that the Senate minority may cause the Senate to act as it will, to act or not act, to vote or not vote — regardless of what the Constitution says on the matter.
ORIGINAL ANALYSIS: SENATE "JUDGES" CONDUCT SENATE "TRIALS"
In Federalist No. 78, Alexander Hamilton said of the judiciary, "It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." This dictum may be applied with equal justice to the Senate in fulfilling its advice and consent role by judging the fitness of judicial nominees.
Based on our analysis of the Founders' intent in designing the several branches of government we conclude the following: When, in accordance with the Constitution, Senators provide advice and consent on any presidential nominee, they are themselves acting in the capacity of judges. This is not an altogether isolated responsibility. The Constitution expressly provides for the Senate to conduct trials and for Senators to serve as prosecutors, judges, and juries. When there is an impeachment, members of the Senate conduct trials present the prosecution case, and vote as jurors. This was witnessed recently in the impeachment of former President Clinton.
Philosophically, it helps to understand that in providing advice and consent on the president's nominees, the Senate is in effect conducting a trial, as prescribed by the Constitution, with the Senators serving as judges. Construing the role of the Senate as conducting a trial is the only way to make sense of its advice and consent function.
In the end, and after due deliberation, the Senators' primary role in such cases is simply to vote in the same way that a panel of judges would vote (or as a civil case jury would vote), with a fixed and inviolable number or proportion of votes needed for a decision to be rendered.
Virtually every panel of appellate-level judges decides cases by a simple majority, including the Supreme Court. The judges on such a panel might desire to exercise "free will," and demonstrate "power" in the Hamiltonian sense of the term, by arbitrarily inventing a new set of "Judicial Rules" hiking the number of votes required to decide a case up to 60 per cent, or 75 per cent, or 90 per cent, or even unanimity. Yet they would be forbidden to do so without proper constitutional or statutory authorization. It is this to which Hamilton is referring with his "neither force nor will." The Constitution does not permit the appellate courts, or the Senators, either the will or the power to make such changes on their own authority.
In providing its advice and consent on judicial nominees, the Senate must render its decision just as courts must decide. Since the Senate is answerable to a higher authority, it must do so in a manner consistent with the Constitution and the laws of the nation.
One of the most potent arguments advanced by Senate Democrats and their activist supporters in progressive organizations and the MSM in defense of the filibuster is the mistaken notion that blocking judicial nominees in the Judiciary Committee is the moral, political, and legislative equivalent of the judicial filibuster. Since this committee maneuver is legitimate, they argue, it follows that filibusters on the floor of the Senate are legitimate as well.
According to our analysis, this represents a fundamental misunderstanding of the role of the Judiciary Committee and the history of its formation.
The present congressional Committee structure was not part of the Constitution and was not envisioned by the Founders. Committees such as Judiciary Committee were first formed in 1816 by the resolution of the Senate itself and according to the official "History of the Committee on the Judiciary, Unites States Senate" (1982) the first assignments to the Committee were made on December 13, 1816. It was only sometime later that judicial nominees were referred to the Judiciary Committee and even then it was only done on an occasional basis.
Only in 1868 did the Senate decide that all nominations would be referred to Committee rather than directly to the entire Senate for a vote. Until then, only a minority went to the Committee and many nominations were reviewed in secret.
Looking back, it appears obvious to us that the philosophy behind referrals to the Judiciary Committee were first made on the theory that it is nothing less than a microcosm of the Senate as a whole. Senate associate historian Don Ritchie appeared to agree with this proposition, characterizing the Senate Committees as a "surrogate" for the Senate as a whole. Consistent with our theory of the Senate's role as analogous to a court when deciding on presidential nominations, the Judiciary Committee requires no more than a simple majority vote to recommend nominations to the full Senate for a floor vote. The majority party gets the opportunity to appoint a majority of the Senators on the Judiciary Committee and has the same power to provide majority advice and consent that is evident in the full Senate.
SENATORS AS "JUDGES" ON THE JUDICIARY COMMITTEE: GOOD FAITH
Just as courts have mistrials, summary judgments, and cases are thrown out on technicalities, so is it possible for presidential nominations to be aborted in the Senate Judiciary Committee due to a president withdrawing the nominations, Blue Slips, Holds or other efforts that have the effect of blocking nominations in the Judiciary Committee. As a result, the Senate may not get a chance to vote on a presidential nominee to the bench.
The likelihood of a nominee being blocked in the Judiciary Committee is greatly increased if the president and the majority in the Senate are of different parties, as occurred at the end of President Clinton's term where a large number of nominees for one reason or another failed to make their way to the Senate floor for a vote. If the majority of the members of the Judiciary Committee vote against, or otherwise reject a nominee, then this is a constitutionally legitimate method of rejection. The Judiciary Committee is merely acting as a surrogate for the entire Senate and voting the judicial nominee up-or-down by simple majority vote.
The potential problem arises when judicial nominees are deprived of a vote in the Judiciary Committee. It seems to us that there is a "good faith" obligation to be invoked here which obliges Senators to act in good faith when they decide on a nominee. If there is to be a delay in holding a Judiciary Committee vote on a nominee, then any such delaying action should be done in good faith, not merely with the intent of delaying for delaying's sake. In fulfilling responsibilities such as providing advice and consent on judicial nominees, the Judiciary Committee no less than the full Senate must follow the Hamiltonian dictum and act as if it were devoid of any will or power of its own. It should not be rushed any more than a court should be rushed. It should investigate thoroughly just as a court would investigate. But it should not delay unnecessarily.
JUDICIAL NOMINEES: A PRESIDENTIAL PREROGATIVE
The significance of the foregoing is that such appointments, whether to Executive Branch posts or seats on the federal judiciary, are the exclusive province of the president. He alone develops a selection process and in a manner consistent with the Constitution chooses individuals who in his opinion are best qualified and most suited to the position. Surprisingly, several leading Democrats from Rahm Emanuel to Barack Obama have agreed with this viewpoint. "George Bush won," said Emanuel. "If you don't like it," he added, "you better win elections." On ABC's Stephanopoulos show this Sunday, Obama criticised his fellow Senate Democrats for their reliance on "procedural maneuvers" such as filibusters to block judicial nominees. "These last-minute efforts using procedural maneuvers ... has been the wrong way of going about it." Obama demonstrated that he is clearly not a man of principle: he stated that he plans to support today's filibuster attempt as will Feinstein, Biden and possibly others who had initially opposed it on similar grounds. According to our theory, the president is the only true agent, possessing both a will and the power to use that will, making choices with the freedom to select anyone he believes will both pass constitutional muster and best fit and fill the office to which nominated. Once he exercises his will and power to choose, and the Senate approves (or not), then he is answerable to nobody else. The only unqualified exception to his autonomy is that, in the ultimate sense envisioned in the Constitution, if the electorate concludes that he has been nominating unqualified judges, or that his Senate-approved nominees are not deciding cases in a manner consistent with the Constitution, it may opt to vote him and his party out of office. Elected officials, unlike federal judges, are answerable to the people through elections.
The Senate has neither the freedom of will nor the power granted to the President because according to the Constitution it is not a volitionally free agent. The Senate's role is merely to confirm or reject, vote up-or-down, rather than interfere with the president's decision-making power.
Certainly the Senate may make its own Senate Rules concerning how to conduct investigations and how to evaluate the qualifications of the candidate. It may choose the date on which the vote will take place. It may choose the location. In fact, the Senators may make any Rules they like and still remain true to the Constitution as long as those Senate Rules do not violate the Constitution or other federal laws.
About this the Constitution is clear: The Constitution's grant of rule-making authority to the Senate, with respect to judicial nominations, does not extend beyond voting to either consent, or not. Filibuster strategist Sen. Byrd and his fellow Democrats' claims to the contrary notwithstanding, what is available to the Senate is only the up-or-down vote by simple majority; nothing more and nothing less. The Senate may not amend this voting authority by changing the simple majority requirement, nor may it evade this responsibility to vote. It must provide the up-or down vote called for in the Constitution. To endeavor to escape, by any means or for any reason, is itself a violation of the Constitution.
Speaker Raeburn's formulation, that the President proposes and Congress disposes, may be construed narrowly or broadly. In its narrow interpretation it may be applied legitimately to judicial nominees as meaning an up-or-down vote by means of a simple majority. But it is constructed in such a way as to lend itself to misinterpretation when conceived broadly. Taken expansively, particularly in connection with judicial nominees (in fact, with all nominees of the president), it is patently violative of the Constitutional prescriptions on advice and consent. Sen. Byrd and his fellow Senate Democrats have clearly chosen an extreme, broad, and unconstitutional interpretation of the Raeburn dictum.
It is worth noting another distinction here, this one between the Senate's action on nominees and its role in considering legislation.
Philosophically, appropriations or other legislative matters are subject to compromise, budgets can be adjusted, portions of appropriations can be eliminated, projects can be stripped-down. Judicial nominees are indivisible human beings with training, families, careers and aspirations and, as such, cannot be bargained, cannot be cut in half, cannot be augmented or reduced by percentages.
There is no room in the Constitution for the sort of "compromise" on nominees that many Senate Democrats are pursuing. Last May, when the filibuster argument fully surfaced, the Senate Minority Leader, Sen. Harry Reid extended to the majority an offer to approve a few of the president's filibustered appellate-leve judicial nominees among the ones he claimed were unqualified, in addition to those he agreed were qualified. The Rules of the Senate are not permitted by the Constitution to be turned into a Chinese menu, with a few from Column A, plus a few from Column B, in which are included several purportedly unqualified judicial extremists. By no means does the Constitution permit what the Democrats were attempting, namely, to subvert the Constitution by claiming to improve on it by making it more fair and more sensitive to a set of fictitious minority rights. Raeburn's "disposes" is unconstitutional if it requires will and power or anything more than an up-or-down vote. (The Senate Democrats understand full well that modifying Senate Rules ordinarily requires a two-thirds majority. They object to the "constitutional option" on judicial filibusters because it circumvents that requirement, and yet they blithely seek to radically amend what the Constitution itself requires without adhering to the rules for enacting Constitutional amendments.)
This is made even clearer when we address the next question: whether, as Sen. Byrd and some his fellow Democrats claim, the Senate may create or amend or reinterpret a Senate Rule on filibusters effectively upping the Constitutional simple majority requirement for approving judges to a three-fifths supermajority (60 of 100 Senators).
The Constitution does require supermajorities for a limited number of votes on matters such as approving treaties, overriding presidential vetoes, or changing the Constitution itself by means of a Constitutional amendment.
COMPROMISING THE CONSTITUTION
Constitutional scholars-in-service-to-the-Democratic Party such as George Washington University political science professor Sarah Binder, may claim:
Republicans' constitutional reasoning ignores critical features of the Constitution. The framers of the Constitution provided clear instructions in Article 1, Section 5 that each chamber would be empowered to write its own rules. Except for the seven instances for which the Constitution stipulates supermajorities for passage, the rule-making clause applies. The Senate can set whatever rules it wishes for carrying out its responsibilities of advice and consent. Requiring supermajorities to end debate on nominations is certainly constitutional. After all, the Senate requires only a simple majority for the actual vote on confirmation.
Yet Professor Binder herself "ignores" several of the most salient facts concerning the constitutionality of filibustering judicial nominees: (1) she "ignores" the fact that while Bill Clinton was President of the U. S. she vigorously opposed filibustering judicial nominees, though now that Bush 43 is President she is one of the biggest supporters of judicial filibusters (justifying her intellectual transformation based on what, as recently as this past week in an appearance on c-span, she termed political "situational ethics;" (2) in the statement quoted above, Binder is intentionally misleading in claiming that the Senate is permitted to create any Rules it wants, since clearly the Senate may not create Rules that conflict with the U. S. Constitution or federal law; and (3) Binder conveniently overlooks the fact that the precedent set by the United States Supreme Court in Ballin (1892) established that, for all Senate votes mandated by the Constitution, there is a default value of a simple majority such that, unless the Constitution specifies a number to the contrary (which it does in some of the examples mentioned earlier, but does not for judicial filibusters), it is impermissible for any constitutionally mandated votes such as those on judicial nominees to require anything other than a simple majority. It is therefore not altogether surprising that no nominee ever given a vote on the floor of the Senate has failed to be approved for lack of a supermajority. The simple majority vote has sufficed for all votes on nominees since the founding of the country — even during the period since the Senate Democrats began filibustering judicial nominees in 2003.
The Democrats invented the judicial filibuster a a few years ago on the basis of their creative reinterpretation of Senate Rule # XXII. Since then they have maintained that this Rule permits filibusters on any matter before the Senate, without limitation or restriction.
Given the foregoing analysis demonstrating the unconstitutionality of the judicial filibuster, then, there remain two possibilities: (1) The entire Senate Rule governing filibusters is unconstitutional since as interpreted it violates the advice and consent clause and the simple majority prescribed as the default value therein; or (2) the Democrats are acting unconstitutionally in their bending Rule # XXII to include the right of the minority to filibuster judicial nominees. In either case, the Democrats use of judicial filibusters is absolutely unconstitutional.
Why did the Constitution provide for the president to choose judges and the Senate to merely provide advice and consent? — The answer is too complex to review and analyze here in great depth, but summarized briefly: The Founders envisioned the president as selecting the most qualified individuals to serve as judges, expecting that the chief executive of the country would choose those who suit his temperament and philosophy while at the same time maintaining a strict allegiance to the Constitution. The president is answerable to the people because his term of office is relatively short, being midway between those of Representatives and Senators, and he (or some other member of his party) must run for the next election. If he selects poorly, or his judicial choices are too skewed in one direction or another, then the electorate will have the option to replace him with a person who holds a contrasting judicial philosophy vested with the authority to appoint judges that he considers constitutionally qualified, and who share his differing interpretation of the Constitution. Apart from the Senate's executing its advice and consent function by simple majority vote, then, this is the only limitation on the president's judicial choices. Some of the Democrats in the Senate may think that what the Constitution specifies is unwise, unjust, or improper, and needs to be "corrected" to better reflect minority rights, the balance of power, or just plain fairness. But that is what the Constitution says, and the only way to get around this fact would be to amend the Constitution itself.
Concerning what the Constitution has to say on judicial nominees, the simple majority vote is the end of it. There is nothing more, nothing less, that is acceptable. Try as they will, the Senate Democrats even with the acquiescence of the Republican compromisers cannot manipulate Senate Rules to "improve" on the Constitution.
It is often said that everyone has a right to his own opinions, but not his own facts. And this certainly is applicable to the Democrats' unconstitutional use of the judicial filibuster. For with equal rightness we may observe, Every Senate has the right to make its own Rules, but not its own Constitution.
© Sherry & Steven Eros
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