US Senate: Art & History Home > Origins & Development > ... I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Senate Is to Advise And Consent, Not Obstruct and Delay The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.
United States Senator Jeff Sessions Wednesday, February 26, 2003 Judicial Nominations -- Miguel Estrada
How did we get into this circumstance? How did we get to this point where the ground rules have changed, that we are into an obstructionist tactic, an unfair procedure? What happened? After the last election when President Bush was elected, the New York Times reported that the Democrat majority, the Democratic Senators at that time early in President Bush's administration had a retreat at some location unknown to me, and they heard at that time from three liberal law professors, Lawrence Tribe, Cass Sunstein, and Marcia Green burger. These liberal professors at this private retreat told the Democrats at that time, they should change the ground rules for nominations. They should ratchet up the pressure and they should alter the historic rules of courtesy, the historic presumptions in the Senate, and they should change how nominees are treated. They said: You have the power to do it. Do it, Democrats. Stand up and block these nominees. Do not accept the nominees from President Bush, like this Republican Senate accepted President Clinton's nominees. Fight every step of the way. That is apparently what has happened.
Shortly after that, when the majority in the Senate changed, I served on the Administrative Oversight and the Courts subcommittee. Senator Schumer chaired that subcommittee. He held hearings. He held hearings to argue the point that the burden of proof for a confirmation of a judge should change and it ought to be on the judge to prove he is qualified. That has never been done before in the history of this country. We had Lloyd Cutler, former Counsel to the White House of Democrat Presidents. We had others testify. They testified that it would be wrong to shift the burden to the nominee, it was not the right thing to do. Then he had hearings to say we ought to just consider your politics, your ideology, as he said, and we can consider somebody's politics, and we can reject them if we do not agree politically.
Sen. John Cornyn (R-Texas) chaired the hearing. He agrees with both Miller and the White House.
"Any exceptions to the doctrine of majority rule, such as any rule of a supermajority vote being required on nominations, must, in my view, be expressly stated in the Constitution," he said.
"For example, the Constitution expressly provides for a supermajority, two-thirds voting rule for Senate approval of treaties and other matters," Cornyn continued. "That's not the case, however, with regard to judicial nominees."
The American Center for Law and Justice (ACLJ) prepared a report for the subcommittee entitled "An End to Nomination Filibusters and the Need for Cloture Motions," which argues that the Senate can, by a simple majority vote, amend its own rules to eliminate the use of filibusters against judicial nominees.
Under current Senate Rule XXII, the Senate is bound to allow unlimited debate unless 60 senators vote to "invoke cloture," ending discussion on the matter under consideration. When Rule XXII was adopted, the sponsors included language requiring a two-thirds majority vote to amend the rule.
ACLJ Chief Counsel Jay Sekulow believes that provision is not binding on the current members of the Senate.
"Nothing in the Constitution, the Federalist Papers or other source documents indicates the obstructive and delaying tactics by legislative minorities were intended to be the source of the Senate's deliberative care," Sekulow wrote.
"A willing majority of senators [could] make new rules for the Senate," Sekulow concluded, "either eliminating the filibuster or substantially curtailing the impact of a filibuster by eliminating the supermajority requirements."
Miller's proposal, examined in light of the ACLJ analysis, appears to be both constitutional and practical. Democrats may have a harder time opposing Miller's strategy, as well, both because he is a Democrat and because it is modeled after a proposal originally introduced in 1995 by Tom Harkin (Iowa) and Joseph Lieberman (Conn.), both Democratic senators.
THE AMERICAN CENTER FOR LAW AND JUSTICE, INC. JAY ALAN SEKULOW Chief Counsel Given the prerogative of the majority, and the respect for that prerogative expressed in Brown, Metzenbaum, and Davis, a willing majority in the Senate could make it in order for the Senate immediately to take up the questions proposed above, regarding the making of the Senates rules, the prohibiting of filibusters on judicial nominations (or the phasing out of them), and the confirmation of Miguel Estrada (or other nominees). And while sixty votes may not be found to invoke cloture, Brown, Metzenbaum, Davis, and their predecessors in law and Senate practice confirm that all that would be required to make the necessary rule changes is a majority of a quorum of the Senate a sufficient number of Senators to insure that the power of the body to act has arisen.
Judicial Nominations, Filibusters, The Constitution: When A Majority Is Denied PART 1 " To reject on constitutional grounds a supermajority requirement for cloture regarding judicial nominees does not compel the same conclusion regarding legislation. The Founding Fathers worried about an excess of law making and erected barriers to that end, including a presidential veto. Filibustering to defeat legislation works towards that same constitutional end. In contrast, the Founding Fathers voiced no concern over the appointment of too many federal judges or judges echoing a uniform philosophy of judging. Filibustering judicial nominees with a supermajority cloture rule advances no constitutional objective or sentiment. Indeed, in the particular cases of two circuit court nominees now before the Senate, the filibustering wars with the constitutional goal of an independent judiciary to check legislative excesses. It is transparent that several pro-filibuster Senators aim to block confirmation of the nominees because fearful they might check congressional usurpations under either the Commerce Clause or section 5 of the Fourteenth Amendment. In other words, the filibusters are calculated to weaken judicial review of federal statutes.
Judicial Nominations, Filibusters, The Constitution: When A Majority Is Denied PART 2 " My advice is simple: follow the law of the Constitution. The original understanding gives unfettered nomination authority to the President. So too, the text allows the full Senate to reject any nominee for any reason, though commentary at the founding supposed that the reasons would have far more to do with intellectual quality or capability than partisan disagreement with the nominees judicial perspective. Beyond that, President Bush has put the matter simply and directly: "the Senate has a constitutional responsibility to exercise its advice and consent function and hold up-or-down votes on all judicial nominees within a reasonable time after nomination."
Now if the response to this is that the Senate, by constitutional text, has sweeping authority to determine its own rules under Article I, section 5, that is, with respect, an incomplete and evasive response. As the Supreme Court unanimously held in United States v. Ballin (1892), "[t]he constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." In a constitutional system, power, like freedom, is not without limit, and the exercise of one provision to thwart the reasonable nominating discretion of the executive and undermine the functioning of the judiciary is subversive of the separation of powers and the constitutional system.
This is especially so when adopted senate rules disregard the principal of majority governance by imposing textually unauthorized super-majority requirements, and where those supermajority requirements are the product of rules never adopted by the current Senate.
As Republicans and Democrats absorb the significance of last week's election results, a few things are starting to become clear. For one thing, Republicans are finally starting to settle into the idea that they are the majority party in this country. They have not thought so since 1932.
I worked in the Senate in 1980, when Republicans won control there for the first time in almost 30 years, and I remember clearly the sense that this was all just temporary. In contrast to the Democrats, who treated Republicans like dirt, the latter were very deferential. They didn't treat Democrats with the same disdain, because in their hearts they knew it wouldn't last.
The memory of 1946-48 and 1952-54, the last times that Republicans held either house of Congress, were very much in their minds. Although no one ever said so, I think most Republicans in the Senate thought they would probably lose the majority in 1982. Consequently, they were fearful of alienating the Democrats, whom, they thought, would soon be back in power, lest they be punished as a consequence.
Can you or someone else please remind me of details of the Fortas nomination and why that is not an apt analogy here? I see Fortas brought up all the time as precedent for a judicial filibuster and saw a counterargument to this once, but have lost track of it.
This would also seem to argue against the judicial committee of the Senate failing to report a nominee to the floor, upon whom full Senate might cast a vote.