A Parliamentary Crisis: Senate May Stop Over Judicial Nominees

On March 1, 2005, the Senate Judiciary Committee interviewed President Bush’s nominee for the U.S. Court of Appeals for the Ninth Circuit, William G. Myers III.

Mr. Myers has been rejected by the Senate before, but Bush has re-nominated him, along with six others who have been blocked in the past. The re-nominations anger Democrats, who say that these judges are too extremist for the federal bench.

Mr. Myers, for example, was a longtime lobbyist for the ranching and mining industries, so Democrats feel he will bring a bias to cases concerning the environment, cases that the Ninth Circuit, headquartered in the west in California, sees regularly. Republicans argue that Myers’ work as a lobbyist does not reflect his ability to judge.

This fight is the latest battle in the war over the judiciary.

The war over the judiciary - the nuclear or constitutional option

President Bush’s judicial nominations will be an important part of his legacy, if not the most significant action of his second term. He will nominate at least one new Supreme Court Justice, who will sit on the bench for life, affecting Americans for generations.

For this reason, Republicans want to ensure that Bush’s nominees don’t run into a procedural blockade called a filibuster, a tool that the minority uses to stop controversial nominees. Overriding a filibuster demands a super-majority of 60 votes.

The Constitution dictates that the Senate give its advice and consent on all federal court appointments. A filibuster stops the consent process, effectively blocking the nominee.

Republicans want to change Senate rules in order to keep Democrats from filibustering nominees, a strategy that Democrats are calling "the nuclear option," and that Republicans refer to as "the constitutional option."

But just how constitutional is the "constitutional" option?

Republicans want to get rid of the judicial filibuster and have the power to pass nominees with just 51 votes. They argue that judicial filibusters are unconstitutional because the Advice and Consent Clause says that appointees must be confirmed or rejected by a simple majority vote.

But the Constitution does not dictate how the Senate advises or consents to a nominee. The Rules of Proceedings Clause allows the Senate itself to determine how it wants to consent. The Senate could decide that it wants a unanimous vote, or, on the other hand, a small committee to confirm nominations. The Constitution merely requires that the Senate somehow approve the President’s nominees. And under the current rules, not voting on a nominee - which is what happens with a filibuster - means simply not giving consent.

But the Rules of Proceedings Clause also makes it constitutional for Republicans to change the consent rules to a simple majority vote. Doing so would ensure majority power over the judicial nominations process.

Tyranny of the majority?

Republicans argue that it’s fair to change the rules to a simple majority vote since it is consistent with the principle of majority rules.

However, the Framers of the constitution went to great lengths to prevent the tyranny of the majority - when the majority decides all measures and silences the minority’s voice.

The Framers did not want a simple system of majority rule, but rather a government structure that afforded the minority some representation and rights. In The Federalist Papers, James Madison wrote that "measures are too often decided, not according to the rules of justices and the rights of the minor party, but by the superior force of an interested and overbearing majority."

What about the "advice" part?

Democrats complain that Bush is ignoring the "advice" portion of the Advice and Consent Clause. They say that he refuses to communicate with senators who oppose his nominees and that he appoints controversial nominees when the Senate is in recess. This lack of communication between the Bush administration and the minority encourages judicial filibusters.

Further, Democrats say that Bush should nominate only judges who are acceptable to a variety of Americans. If a nominee can’t secure even 60 votes in the Senate, Democrats say, she or he is too immoderate for the federal bench.

A Parliamentary Crisis

If Republicans change Senate rules to approve judicial nominees, Democrats say that they will retaliate by refusing unanimous consent agreements, which help legislation to move quickly through the Senate.

This reprisal would slow the Senate to a near-halt, causing senators from both parties to spend days on the floor voting on routine housekeeping matters. Democrats could use amendments to slow bills as well – Senate precedent allows any senator to break an amendment into smaller pieces that are each considered separately.

The potential for a near-shutdown in the Senate is causing critics to call the battle over the judiciary “a parliamentary crisis." Both sides are resisting compromise and threatening extreme procedural tactics to win.

However, Senators on both sides of the aisle are calling for compromise. Namely Republican Arlen Specter of Pennsylvania, who is chairman of the Senate Judiciary Committee and opposed to changing Senate rules to stop filibusters. Specter is trying to facilitate cooperation among the parties and find support for the nominees already blocked by Democrats.

But so far, Specter has not been successful. He tried to gather support for the Ninth Circuit Nominee William G. Myers III, but Democrats "pummeled" Myers in the Judiciary Committee hearing, according to The New York Times.

Senator Diane Feinstein (D-California) has called for public hearings to discuss the use of the filibuster to block judicial nominees. She feels that the American people should be made more aware of the possible rule change and that public opinion should be considered before the nomination process is altered.

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Posted on: 3/10/2005