Constitutional Cynicism

©2003 by Dale Franks

For two years now, Senate Democrats have delayed confirmation on several of President Bush's judicial nominations. Currently, two of the president's judicial nominees are stalled in the Senate because forty Democratic Party senators are using the Senate's rules to prevent the full Senate from voting.

Under Senate rules, sixty votes are required to invoke "cloture", that is, to place an absolute limit on the time allowed for Senate debate, in order to bring an issue to a vote. Forty senators, however, can prevent a Senate vote on cloture from passing, and thereby extend debate indefinitely. This prevents the Senate from voting on an issue for as long as the minority can muster the required forty senators to prevent a call for cloture. This is called a "filibuster".

Use of the filibuster might be an acceptable tactic when discussing legislation. Legislation is, after all, the primary responsibility of the Congress, and the power of each house to set its own rules for passing legislation is essentially unlimited.

In the area of judicial nominations, however, there are Constitutional issues that take precedence over Senate rules. Judicial nominations concern the separation of powers between the executive, legislative and judicial branches, as well as the principle of judicial independence. No matter what the Senate's rules may allow, if they are in conflict with the Constitution, the requirements of the Constitution must preempt them. To do otherwise is to allow a minority of Senators to subvert the Constitution for political gain.

In speaking about judicial nominations on NBC's "Meet the Press", Senate's Minority Leader Tom Daschle (D-SD) claims that "in controversial issues, the Founding Fathers have said that it ought to take a supermajority" to confirm judges. There is not a scintilla of textual or historical evidence for such a position. Had the Framers intended to require a supermajority to confirm judges, they would have done so, just as they did in requiring them for impeachments, treaty ratifications, or to expel a member from one of the houses of Congress. That they did not do so for confirmations is a clear indication that Sen. Daschle's reading of the Constitution is seriously flawed. Additionally, the Senate has never at any time in the past two centuries experienced a filibuster on any judicial nomination, which would also seem to be problematic in terms of finding any historical precedent for Sen. Dashle's contention.

The Constitution itself simply says that the President, "by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States". The only reasonable reading of the text is that the Senate is required to vote on presidential appointees, and must do so as a whole, even if a substantial minority disagrees. Any other reading would have the effect of allowing a minority in the Senate to cripple any administration by refusing to allow a vote on the administration's appointees.

This can hardly be a reasonable reading of the Framers' intentions, considering that it violates the doctrine of separation of powers. One of the cases where the Constitution does require a supermajority is in the case of a presidential impeachment. While a simple majority of the House of Representatives can impeach the President, it takes two-thirds of the Senate to convict. The purpose of this supermajority requirement is to sharply reduce the ability of Congress to dictate policy to the President by threatening impeachment. It maintains the separation of powers by limiting the legislative branch's ability to interfere with the executive. It would, therefore, take quite a leap of interpretation to argue that even though the Constitution requires a supermajority to restrain the executive through the impeachment process, it allows a simple minority to do so by holding the appointments process hostage.

What makes the current impasse in the Senate truly unconscionable is that a clear majority of Senators--from both parties--have already stated their intention to vote to confirm both of these judicial nominations. So much, then, for the rule of the majority. So much then, too, for the will of the electorate, who have returned the Republican Party to the majority in Congress for the last five consecutive elections.

Despite attempts such as Senator Daschle's to clothe themselves in respectable Constitutional argument, however threadbare such arguments may be in reality, it is clear that the current intransigence by Senate Democrats is nothing more than bitter partisan politics. Senators like Charles Schumer (D-NY) have complained that they can't vote for nominee Miguel Estrada because he hasn't answered questions to their satisfaction. The White House attempted to respond to those complaints by offering to let the Senators pose questions to Mr. Estrada, and promising that written answers from Mr. Estrada would be promptly returned. In response, the filibustering senators declined to ask any questions, and then brazenly continued to complain about Mr. Estrada's unwillingness to answer them. There probably have been more egregious examples of political cynicism, but one is hard pressed to think of any.

And if you think this is bad, wait until President Bush has the opportunity to nominate a new Supreme Court Justice.

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