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Posted on 07/18/2003 2:59:55 PM PDT by Vindiciae Contra TyrannoSCOTUS

YES: The cloture rule should be revised to allow a simple majority to close debate on nominees.

For months now more than a majority of the U.S. Senate has been prepared to confirm several highly talented men and women to seats on the federal bench. Yet Miguel Estrada, President George W. Bush's nominee to be the first Hispanic to serve on the prestigious U.S. Court of Appeals for the D.C. Circuit, and Priscilla Owen, a Texas Supreme Court justice who has been nominated to the 5th Circuit, can't be brought to a vote. Others are bottled up as well - California state Judge Carolyn Kuhl, nominated to the 9th Circuit, and Alabama Attorney General Bill Pryor, nominated to the 11th, are likely filibuster targets. And goodness knows what will happen when there is a Supreme Court vacancy.

Why? Because a minority, under present Senate rules, prevails over a majority - even though that topsy-turvy proposition is nowhere to be found, as might be imagined, in the U.S. Constitution. Well, you say, just change the rules. Sure, says the Democratic minority, all you need is 67 votes. Whoa! Wait a minute, says Sen. John Cornyn (R-Texas), who was elected in 2002. I never had a chance to vote on these odd existing rules, and neither has a bipartisan group of 10 freshman senators. Too bad, says the minority. We not only determine the outcome, we also entrench our control of it by a two-thirds (67-vote) rule-change requirement that is carried over from a previous Senate.

This makes no sense, and Senate Majority Leader Bill Frist (R-Tenn.) has introduced a straightforward resolution to untangle the mess. S. Res. 138 seeks to amend rule XXII of the Standing Rules of the Senate to provide for more timely consideration of all nominees requiring the advice and consent of the Senate. The proposed amendment would accomplish this by providing for declining majorities for subsequent cloture votes to close debate on nominations until, on the fourth try, only 51 votes would be needed.

The Senate Rules and Administration Committee now has sent S. Res. 138 to the floor and, even though the proposal makes tremendous sense, it's headed for a fight. Majority leader or not, Frist is being told he can't have it unless he has a supermajority of 67 votes. The Democratic position is flat out unconstitutional.

The unconstitutionality of allowing a previous legislature to prevent a subsequent one from exercising its full legislative authority is age-old and near axiomatic. Sir William Blackstone posited that "acts of parliament derogatory from the power of subsequent parliaments bind not." This understanding is embedded in our Founders' own suppositions about legislative power. James Madison and Thomas Jefferson both felt strongly about religious freedom and secured the enactment of the Virginia Statute on Religious Freedom. But however much they wished that enactment never to be repealed or altered, they acknowledged expressly that a legislative assembly has "not [the] power to restrain the acts of succeeding assemblies, constituted with powers equal to [their] own, and that therefore to declare this act irrevocable would be of no effect in law."

This precept is unassailably a part of preserving the "consent of the governed." The U.S. Supreme Court simply cited authority in a 1996 decision for the principle, noting that "the will of a particular Congress does not impose itself upon those to follow in succeeding years" and that the principle is "so obvious as rarely to be stated."

True, we all are bound by the "higher law" of the Constitution that also binds successive Congresses, but that is because the Constitution is by design intended to last "for the ages," a point underscored by the supermajorities needed for its amendment in Article V (two-thirds of both Houses and three-fourths of the states to ratify). Goodness knows, as venerable as Senate rules may be, they are not of that lofty status.

A Senate minority cannot constitutionally deprive the whole body of the present Senate of at least one opportunity to ratify, amend or repeal carryover rules from a previous Senate. Because this opportunity has not yet been afforded the Senate of the 108th Congress, Frist's proposal in S. Res. 138 is not an attempt to jettison constitutional practice, but to follow it.

For partisan reasons, Sen. Robert C. Byrd (D-W.Va.) is unlikely to be behind Frist's proposal. Byrd nevertheless is in my book the dean of Senate historians, and there is weighty authority to be found in the Byrd treatise on the Senate supporting Frist. For example, Byrd quotes Sen. Thomas J. Walsh (D-Mont.) in 1917 as writing that "each new Congress brings with it a new Senate, entitled to consider and adopt its own rules."

For example, at the beginning of the 85th Congress, Sen. Clinton Anderson (D-N.M.) moved to adopt new rules. His motion was tabled but, before the matter was concluded, then-vice president Richard Nixon gave the opinion of the chair that although it was common practice to continue rules from one Congress to the next, "the current Senate could not be bound by any previous rule which denies the membership of the Senate the power to exercise its constitutional right to make its own rules."

This same view was articulated in later Congresses by vice presidents Hubert Humphrey and Nelson Rockefeller as presiding officers of the Senate. Subsequently, the 94th Congress again endorsed the view that a majority may invoke cloture to change Senate rules at the start of a Congress. It is of little consequence that a subsequent compromise resulted in the present rule XXII, providing for 60 votes to close debate and 67 votes to change the rules.

Rules that unconstitutionally allow a minority to entrench or impose carryover rules especially need to be changed now that the filibuster is being applied abusively to stymie judicial nominees. As Lloyd Cutler, White House counsel to presidents Jimmy Carter and Bill Clinton, similarly concluded, "Whatever the merits of the filibuster as a device to defeat disliked legislation, its use to frustrate a judicial appointment creates a dangerous precedent with important implications for the very structure of our government." Cutler further observed that the "requirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional" since they have been imposed by a previous Senate.

The filibuster is part of the Senate's legacy of deliberation on legislation, but not on nominations. It is highly significant that in Byrd's comprehensive treatment of the filibuster, there is no specific mention of the use of the Senate's tradition of unlimited debate to frustrate judicial nominees. Applying the filibuster to judicial nominations is qualitatively different from applying it to legislation. Whether filibusters should apply at all is arguable, but at a minimum a different and more accountable cloture standard is warranted. Frist's proposal is faithful to the Senate's deliberative history while not undermining its accountability to the functioning of coordinate branches.

Senate Minority Leader Tom Daschle (D-S.D.) suggests that many of President Bush's nominees have been confirmed. This is a reasonable debating point, but it fails to address the systemic danger. With respect, Daschle's answer is neither in keeping with the Senate's constitutional responsibility nor respectful of the men and women willing to put their professional and personal lives on hold to be considered for federal judicial office.

The proposition that the system of judicial confirmation is not broken also is belied by the acrimony that has resulted from wrongly aiming the filibuster at the judiciary. Both parties here have a tendency to finger-point and claim that the other "started it," yet that is far less important than observing the Constitution. When Clinton's most controversial nominees survived a handful of attempted filibusters by Republicans in the 1990s, that was not a ratification of the practice, but a warning signal.

As Sen. Zell Miller (D-Ga.), a cosponsor of the Frist proposal, reminds us, the Framers envisioned that the whole body would give timely "disposition" - thumbs up or down - on nominees. Filibusters yield not disposition, but paralysis.

That the Senate is intended to act in a timely fashion on nominations also can be gleaned from history. George Washington wrote that "in the appointment of offices, the agency of the Senate is purely executive," and "[President Washington] envisioned that as such, [the Senate] may be summoned to the president" to provide such advice. No modern president, of course, would think of "summoning" the Senate. The comity and mutual respect of the branches eschews such terminology. Yet, the greater institutional deference that has emerged since Washington's time cannot obscure that the appointment power includes its own textual remedy for untimeliness by the Senate - namely, recess appointment. The Recess Appointments Clause in Article II, Clause 3, provides that the president alone can "fill up vacancies that may happen during the recess of the Senate," thereby providing by implication an encouragement to the Senate to act on all nominations submitted to it in the session in which the nomination is made.

Recess appointments are for a limited time (until the end of their next session), and even though some notable justices have found their way to the court by this means (e.g., Earl Warren), it is modern practice - again for reasons of Senate comity - to avoid excessive use of this constitutional grant. The judicial filibuster certainly weakens this comity. That is unhealthy for the relationship between Senate and executive, and also problematic for the judiciary that then is administered by temporary officers.

The Senate has ample authority to set its own rules in Article I, Section 5. Rule XXII permitting the filibuster, even as applied to judicial nominations, is very likely not itself unconstitutional, even as it permits a minority to prevail - so long as that rule is adopted by the present Senate. This aspect of democratic practice (the unique protection of minority voice) is implicit in everything from the composition of the Senate itself to the delegation of responsibilities to committees. One may argue, as I have elsewhere, that it was the understanding of the founding generation, most notably Alexander Hamilton, that nominees would have the benefit of the deliberation of the "whole body" of the Senate, and that with respect to judicial nominations, procedures that allow committees (or even individual members) to defeat a nominee in committee are ill-advised. That said, they are in all likelihood not unconstitutional.

What a minority of the Senate cannot do - lawfully at least - is what it is doing: imposing its will on the majority without ever giving the majority a single chance to fashion rules that reflect majority choice. This is an injury felt by freshman senators and veteran legislators who, if given a chance, would support a more responsible practice such as that proposed by Frist. Yet, in truth, it is an unconstitutional imposition paid for most by us - the people who elected them.

Kmiec is dean of the Catholic University of America's Columbus School of Law in Washington. He has accepted the Caruso Family Chair in Constitutional Law at Pepperdine University. He testified before the Senate Judiciary Committee on this topic.

Book her, Dano.
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