If in the end, we must use parlimentary proceedure to revise or suspend the Rules of the Senate in order to execute the Senate's Constitutional duty, we must have first made the case that such a step is both necessary and right.
MR. STEVEN CALABRESI Professor of Law Northwestern University Law School
The people of the United States have just won a great victory in the war to bring democracy and majority rule to Iraq. Now it is time to bring democracy and majority rule to the U.S. Senate’s confirmation process for federal judges. A determined and willful minority of Senators has announced a policy of filibustering, indefinitely, highly capable judicial nominees such as Miguel Estrada and Priscilla Owen. By doing this, those Senators are wrongfully trying to change two centuries of American constitutional history by establishing a requirement that judicial nominees must receive a 3/5 vote of the Senate, instead of a simple majority, to win confirmation.
I have taught Constitutional Law in one form or another at Northwestern University for 13 years and have published more than 25 articles in all of the top law reviews including the Harvard Law Review, the Yale Law Journal, the Stanford Law Review, and the University of Chicago Law Review. I served as a law clerk to Justice Antonin Scalia and as a Special Assistant to the Attorney General of the United States. I am a Co-Founder and the Chairman of the Board of Directors of the Federalist Society, a national organization of conservative and libertarian lawyers. I offer this legal opinion in my individual capacity, and not on behalf of my academic institution, the Federalist Society or any client.
The U.S. Constitution was written to establish a general presumption of majority rule for congressional decision-making. The historical reasons for this are clear. A major defect with the Constitution’s precursor, the Articles of Confederation, was that it required super-majorities for the making of many important decisions. The Framers of our Constitution deliberately set out to remedy this defect by empowering Congress to make most decisions by majority rule. The Constitution thus presumes that most decisions will be made by majority rule, except in seven express situations where a two-thirds vote is required. The seven exceptional situations where a super-majority is required include: overriding presidential vetoes, ratifying treaties, approving constitutional amendments, and expelling a member.
The Senate can always change its rules by majority vote. To the extent that Senate Rule XXII purports to require a two-thirds majority to invoke cloture on a rule change, Rule XXII is unconstitutional. It is an ancient principle of Anglo-American constitutional law that one legislature cannot bind a succeeding legislature. The great William Blackstone himself said in his Commentaries that "Acts of parliament derogatory from the power of subsequent parliaments bind not...". Thus, to the extent that the last Senate to alter Rule XXII sought to bind this session of the Senate its action was unconstitutional. A simple majority of the Senate can and should now amend Rule XXII by majority vote to ban filibusters of judicial nominations.
Leading scholars in this area of law such as John O. McGinnis of Northwestern University, Michael Rappaport of San Diego University, and Erwin Chemerinsky of the University of Southern California all have written that the Senate Rules can be changed at any time by a simple majority of the Senate. More importantly, Vice Presidents Richard M. Nixon, Hubert H. Humphrey, and Nelson A. Rockefeller have all so ruled while presiding over the United States Senate. Some commentators have gone even further in challenging filibusters of legislation as unconstitutional, as did Lloyd Cutler, White House Counsel to Presidents Carter and Clinton. Indeed, eight years ago, 17 very distinguished law professors, led by Yale Law Professor Bruce Ackerman, opined that a new Rule in the House of Representatives purporting to create a 3/5 requirement for enacting new tax increases was unconstitutional. The Ackerman letter wisely called for limiting the proliferation of new extra-constitutional, super-majority rules – counsel that the Senate should heed here.
What will happen if the filibuster is allowed to spread to the new area of judicial confirmations? It will next spread to the resolution every new Senate must pass to organize itself, set up Committees, and apportion staff and other resources. The filibusters next expansion will be one wherein a minority of 41 Senators will claim they are entitled to equal slots and Committee resources as are enjoyed by a majority of 59 Senators. This is the logical extension of the filibusters protection of minority rule under the inexorable Calhounian logic now being played out.