The Federalist Society

Pirates We Be

May 14, 2003

Steven G. Calabresi

The Wall Street Journal

Wednesday, May 14, 2003

P. A14

Rule of Law by Stephen G. Calabresi

Pirates We Be

Last Friday marked the two-year anniversary of President Bush’s nominations of Miguel Estrada and Priscilla Owen as federal appellate judges. The nominations, supported by a majority of senators, are being filibustered to death by a posse of Senate Democrats. Tom Daschle, the Senate minority leader has previously attacked filibusters as unconstitutional, is spearheading the effort. He growls that the current disruption is but a review of what’s to come.

The stakes in this particular nomination battler are even higher than usual. With Chief Justice William Rehnquist and Justice Sandra Day O’Connor getting ready to retire, a minority of Senate Democrats are threatening to filibuster anyone to the right of David Souter. On the merits, Antonin Scalia should be nominated as chief justice and Judges Michael Luttig or Michael McConnell as the new associate justice. But the fear of endless Senate filibusters may deter Mr. Bush from picking the best candidate if it means wading into another fetid nomination swamp.

Fortunately, Senate Majority Leader Bill Frist and 10 other senators, including Democrat Zell Miller, have proposed a resolution to prevent indefinite filibusters of judicial nominations. The Frist-Miller proposal would gradually reduce the number of senators required to invoke cloture on a nomination from 60 votes, to 57, to 54, to 51 to a majority of senators present and voting. The basis for their proposal is well supported in history and constitutional law. The Constitution was originally written to empower Congress to make most decisions by majority rule. A major defect in the Constitution’s precursor, the Articles of Confederation, was that it required super-majorities for many important decisions. That difference was deliberately remedied by the Framers.

Exceptions to the constitutional principle of majority rule exist, nut they are enumerated in seven express situations where a two-thirds vote is required. The bar for requiring a super-majority is high: removing an official who has been impeached, expelling a member of Congress, passing a constitutional amendment, or overriding a presidential veto Confirming one of the nearly 1,000 lower federal court judges is not the sort of serious action that the Framers thought or said required a super-majority.

Both houses of Congress have the power by majority vote to establish the "Rules of its Proceedings." But as an original matter, there is no evidence this clause was meant to authorize indefinite filibusters. Nor is there evidence I am aware of that indefinite filibusters were allowed in 1787 in the state legislatures or in the British Parliament, although legislative committees and more ordinary rules governing debate were common. In fact, from 1789 to 1806—during the critical first eight Senates to sit under the Constitution—the Senate’s rules allowed for cutting off debate by a simple majority vote. This strongly suggests what the text of the Constitution already implies: the Senate filibuster is on very shaky ground as a matter of text and original constitutional history.

 

The traditional Senate filibuster of legislation has an ignominious history. It got its start in the 1840s when Sen. John C. Calhoun first employed a rule adopted in 1806 to defend slavery. He was called a "filibusterer," a term taken from a Dutch word for pirates who sought to overthrow Latin American governments to hasten the spread of slavery. From 1841 to the present, the filibuster was primarily used to defend Jim Crow laws. Today it stands in the way of vouchers, school choice, tort reform, and tax cuts.

Now for the first time in 214 years of American history a minority of senators is seeking to extend the tradition of filibustering from legislation to judicial nominees who they know enjoy support of a majority of the Senate. This is a change of constitutional dimensions and amounts to a kind of coup d’etat. While a filibuster was briefly used in 1968 against chief justice nominee Abe Fortas—he was supported by fewer than 50 senators—there was only one cloture vote on his nomination.

The unprecedented extension of the filibuster to judicial nominees supported by a majority of the Senate threatens to raise the vote required for confirmation from 51 to 60 in violation of the Advice and Consent Clause. Were the Democrats to succeed in this pattern, it would greatly weaken the intended power of the president to appoint federal judges who are supported by a Senate majority. It would also undermine judicial independence by giving a minority of senators—led by special interest groups—a veto over who can become a judge.

Senate Rule XXII purports to require a two-thirds vote of the Senate to end debate on amendments of the Senate rules. Constitutional scholars of all political persuasions, however, agree that the Senate can always change its rules by a simple majority vote. Three vice presidents and law professors from Erwin Chemerinsky on the left to John McGinnis on the right agree. Even Lloyd Cutler, White House Counsel to Presidents Carter and Clinton, has written in the Washington Post that Senate Rule XXII "is plainly unconstitutional."

To the extent that the rule purports to require a two-thirds majority for cloture on rules changes, it is unconstitutional. It is an ancient principle of Anglo-American constitutional law that a legislature cannot bind a succeeding legislature. A two-thirds requirement for cloture on rules changes allows the Senate that adopted Rule XXII unconstitutionally to bind this Republican Senate, elected in 2002, after a campaign in which judicial confirmations figured prominently.

Fidelity to the text of the Constitution, the original understanding, and 214 years in which there wasn’t a single sustained filibuster of judicial nominees, is ample evidence that the Democrats’ plan to thwart Republican nominees from entering the judicial system must be stopped. Republicans were voted into control of the House, the Senate and the White House. It is time for them to govern.

Mr. Calabresi is a professor at the Northwester University Law School and a co-founder of the Federalist Society.


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