Four Years and Counting: Priscilla Owen Waits for Nuclear Fallout

May 9, 2005 marks the four year anniversary of Priscilla Owen’s nomination to the 5th Circuit Court of Appeals. But she hasn’t served a day on the federal bench - she’s still waiting to be confirmed.

Democrats argue that Owen’s views are much more conservative than the average American’s, so she shouldn’t be a federal judge. They claim she unfairly favors corporations and is against abortion rights. Owen is one of ten nominees that Democrats have blocked.

Although Democrats have confirmed 219 nominees, Republicans want more control over the nomination process. 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.

Advice and consent

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.

Historical context

Republicans have themselves used the judicial filibuster, but just once, and it wasn’t a strictly partisan effort. Republicans and Democrats worked together to block Lyndon B. Johnson’s nomination of Abe Fortas for Chief Justice of the Supreme Court.

Unlike today’s nominees, Fortas wasn’t blocked because of his ideology. Senators on both sides of the aisle felt that he was unfit for the job because he was accused of ethics violations while serving as a Supreme Court Associate Justice.

But history also shows that the American public can resent a rules change that affects the judiciary. In 1936, Franklin D. Roosevelt attempted to pack the Supreme Court with six new judges, but public outcry prevented his legislation from being passed. This attempt to overpower the judiciary resulted in a loss in popularity for FDR.

Could the same happen to George W. Bush if Republicans change the rules to block the filibuster? Are the Democrats being unreasonable in their refusal to pass these ten nominees? What kind of rights should the minority have, or should the majority always rule?

What do you think?

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Posted on: 5/13/2005