The Democrat filibuster of judicial nominees in the Senate is unprecedented. Unfortunately, even a handful of conservatives treat these filibusters in the context of political calculations rather than unconstitutional abuses of power. Whatever the politics of ending the Senate's judicial filibusters, and one can only speculate, defending the Constitution is paramount.
Liberal Yale law professor Bruce Ackerman, among the first and most prominent voices urging Senate Democrats to use the filibuster, argued incorrectly that in 2000 Supreme Court justices "put their man in the White House." And "[b]y intervening in ... the election, the conservative majority removed the American people's check on a runaway court." Mr. Ackerman argued that there "should be a moratorium on Supreme Court appointments until the American people return to the polls in 2004.
[I]t only takes 40 senators to block any appointment to the court. Senators should use this power to force President Bush to demonstrate that he can win re-election in 2004 without the court's assistance."
The Senate Democrats are going further than even Mr. Ackerman urged, using the filibuster rule to obstruct broadly the president's constitutional authority to appoint judges. And they have no intention of stopping their filibusters despite Mr. Bush winning a majority of the popular and Electoral College vote. Their purpose is a reverse packing of the judiciary. By denying the president numerous key appointments to vacancies on the federal bench, the judiciary grows increasingly activist due to the remaining numerous Clinton appointees.
The Constitution grants the Senate authority to give its advice and consent to the president's nominations. The Senate also has the authority to set its own internal operational rules. Some contend that by conflating the two, as few as 41 senators are free to impose a super-majority requirement on the full Senate's execution of its advice and consent power and, ultimately, on the president's judicial nomination power. This approach has no support in the Constitution or in the debates during the Constitutional Convention. And hitherto, no Senate minority, of any party, has endorsed this interpretation.
In 1998, liberal legal scholar Michael Gerhardt wrote, in part, "By requiring only a simple majority of the Senate to approve a nominee, the Constitution sets a low threshold for confirmation relative to virtually all other significant legislative action, which must satisfy much stiffer procedural requirements." He added, "As a practical matter, the requirement of a bare majority of the Senate for confirmation means that smaller factions cannot thwart a presidential nomination in the absence of special Senate procedures empowering individual senators, or some special subset, with the necessary authority." The Constitution provides only seven instances in which a super-majority vote is required: the concurrence of two-thirds of either house to expel a member of Congress; conviction on impeachment; to override a presidential veto; to ratify treaties; to propose constitutional amendments; to restore federal rights to former rebels under the 14th Amendment; and to determine a president's inability to discharge his duties under the 25th Amendment.
There has been much hand-wringing about the consequences of Senate Republicans ending judicial filibusters, absurdly characterized as "the nuclear option." Senate Minority Leader Harry Reid, a top architect of the Democrat's obstructionism, warns that Republicans "will rue the day" if they change the Senate rule. It's difficult to imagine anything more damaging that the Democrats can inflict on the president's powers and legacy than to weaken his office and his imprint on the judiciary. Whether the issue is Social Security, tax reform, the war on terrorism or cutting spending, Mr. Reid has already made clear his unwillingness to cooperate, regardless of whether the Senate R