Bench Memos

NRO’s home for judicial news and analysis.

Kmiec v. Tribe II


Here is another round of debate between Professor Tribe and Professor Kmiec. Tribe is here: Professor Kmiec’s response below:

Professor Tribe and I continue to disagree, in friendship and with respect, over whether the filibuster is appropriately aimed at judicial nominations. He thinks it is; I do not.

Like the superb lawyer and scholar that he is, Professor Tribe marshals counter-evidence or interpretation that is important to consider as Senate process is evaluated, but let me suggest that what should not be lost is the substance over which we share common ground: those appointed to the federal judiciary should have integrity, a clear understanding of the separation of powers in a democratic republic, and the character and stamina to honor both. Judges ought not be in service of partisan agendas. Likewise, I would suggest, judges should be sufficiently restrained in demeanor not to indulge the practice of disallowing the policy choices of the people’s representatives that the Constitution does not prohibit.

On matters of process, I note that Professor Tribe does not specifically refute earlier argument that the filibuster applied to judicial nominations can result in harm to executive and judicial branch. With respect to the executive, the framers in convention were most concerned with allocating appointment authority in a manner that would promote public accountability. The president was given a slight edge (the power of unfettered nomination and the qualified power of ultimate appointment following advice and consent) since, as the Supreme Court would later observe: “the Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism” than the Senate.” The founders especially did not want the process to be dominated by, as Nathaniel Ghorum put it, “intrigue and cabal,” and that was thought more likely to affect the political bargaining of a legislative assembly than the discernment of a single person. Gouverneur Morris thus sums the Constitution’s allocation of appointment authority in favor of the president succinctly: “as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”

Now, of course, the question is how much security is too little and how much would be too great. Too little security from the Senate would not avoid the patronage aspects of appointment that might infect a presidential choice, and too much power lodged in the Senate would invite Senate domination of appointment which would represent the obfuscation or diffusion of responsibility that the framers wished to avoid. The framers especially wanted to avoid legislative bargaining that would ignore the intrinsic qualities of each candidate – or as Hamilton put – the sentiment that says “give us the man we wish for this office, and you shall have the one you wish for that.” Hamilton’s words resonate hauntingly since the idea of legislative compromise over the past weeks has been just that: “will give you Brown, but not Owen” or even worse, “you can have two or three of yours, but not seven or ten.”

My colleague in constitutional teaching Professor Tribe concedes that Federalist 77 extols the virtue of “submitting each nomination to the judgment of the entire branch of the legislature” – what Dr. Frist might call the wisdom of an “up or down vote” – but then curiously deduces from that a minority of the Senate can frustrate the “entire branch” from addressing the question at all. The one does not follow from the other. Far from supporting the notion of a minority generally determining the fate of appointments, Hamilton anticipated that Senate disapproval would be limited to where there was “special and strong reasons for refusal.” It is simply not conceivable that the framers would have applauded a filibuster device applied to judicial nominations that would invite the Senate to globally impede, rather than being a check, as Hamilton wrote, of “in general, a silent operation.”

So, then, how did the framers believe too little “security” would come from the Senate? Precisely by empowering less than the whole body to pass upon an appointment. Hamilton in Federalist 77 was especially outspoken against small councils of appointment, since they would not be “large enough to preclude a facility of combination. . . .[E]ach member will have his friends and connexions to provide for, the desire for mutual gratification will beget a scandalous bargaining of votes and bargaining for places.” Now, to be sure, the colonial councils of appointment being referenced are different than the larger minority operating under a filibuster, but here I hope Professor Tribe and I can find additional agreement.

I am critical of the filibuster for denying the entire Senate its constitutional role. In his earlier rebuttal, Professor Tribe challenged me to acknowledge “the myriad ways in which presidential nominations of judges . . . have .. .been suffocated in the cradle and never permitted to reach the floor at all.” To my colleague and friend, I say, “amen.” I have no brief in support of either Democrat filibusters that prevent the entire Senate from exercising its judgment or Republican committee practices that deny hearings or refuse to bring candidates to the floor that have the same effect. Both are constitutional defaults. The default comes in the sacrifice of accountability, or what is popularly termed, transparency. Filibusters denying full floor action and “committee cradle suffocations” of nominees both dangerously – as Hamilton warned – “shut up in private [and make] impenetrable to the public eye,…”

Professor Tribe argues, if the full body of the Senate should vote, why not require more than a majority for approval? This, however, goes to the other extreme and raises the issue of too much security. It also disregards a constitutional text that demonstrates a founding generation that knew how to provide for super-majority requirements when they were intended. Simply imposing the non-textual super-majority approval requirement of the filibuster, as discussed above, fundamentally changes the particular nature of the appointment allocation that is part of the Constitutional design. The framers considered and rejected in the convention a 2/3ds Senate concurrence for judicial appointments. It is fair to conclude that they believed such would undermine the assignment of responsibility – and hence, accountability – for appointment; a super-majority requirement would only aggravate the cabal-like, bargaining behavior thought unsuitable to weigh the merits of judicial candidates. What was needed to defeat a nomination? The lack of a majority. “If the Senate be divided, no appointment could be made.” Federalist 69. It was that simple. It was that important.

In all this, I have said little about the damage to the judicial branch posed by the judicial filibuster, but perhaps that is too obvious to need great elaboration. Certainly, long-standing vacancies in the face of expanding dockets mean a failure to address the life, liberty and property in litigation. Beyond this, other scholars have often reinforced the framers concern that when a minority of the Senate can delay or obstruct a fully capable nominee by reason of partisan or ideological disagreement, there is the greater likelihood of a “faction,” as Madison would have called it, eroding the independence of the judiciary.

A few final words. Professor Tribe more or less concedes that senior members of the Senate, such as Senator Byrd (D-W. Va) and Senator Schumer (D-NY), have acknowledged the power of a majority of the Senate to change its rules, including its cloture rules, by majority vote, though he implies that somehow, these members now believe that since this was not done “at the beginning of a new Congress,” the Senate is estopped to adopt new rules or otherwise interpret existing cloture rules as inapposite to judicial nominations. I know of no support for this timing limitation, though I admit orderliness and good administration would commend it. The constitutional text is clear: “Each House may determine the Rules of Proceedings, . . .” Article I, section 5. The power is plenary and available. And as Senator Byrd, as recently as today, confirmed, the power of a majority to close debate existed from the time of the first Senate. In Senator Byrd’s own words: “The rules adopted by the United States Senate in April 1789 included a motion for the previous question . . . the previous question allowed the Senate to terminate debate. ‘Mr. President, I move the previous question.’ Or in the House, ‘Mr. Speaker, I move the previous question.’ And if that gains a majority, no further debate-the previous question will be voted on.”

The time for closing debate on these long-pending judicial nominations is at hand. The Senate majority should do so, not to “automatically confirm” anyone, but to decide, consistent with the historic understanding of the Senate’s “advice and consent” duty, whether the men and women nominated merit appointment not because they are our fellow partisans with respect to one policy or another, but because they understand the nature of the judicial role and the rule of law.


(Simply insert your e-mail and hit “Sign Up.”)

Subscribe to National Review