Bench Memos

NRO’s home for judicial news and analysis.

Kmiec v. Tribe on Judicial Filibusters


Harvard’s Professor Lawrence Tribe recently posted on line his reasons against ending the filibuster as it has been applied to judicial nominees. Below is Pepperdine Professor Doug Kmiec’s counter-argument in favor of ending judicial filibusters. (Professor Tribe in regular font; Professor Kmiec in italics.)

The Nuclear vs. The Constitutional Option –

The constitutional instruction to the Senate is to give “advice and consent,” not to confuse and equivocate.

Point – Counterpoint

There’s is a good reason the Republicans have used the phrase “Nuclear Option” to describe the technique they threaten to deploy in order to change the rules under which the Senate performs its constitutional role of “advise and consent” with respect to presidential nominations to the federal bench. Nuclear weapons, we all know, are uniquely threatening. The reason isn’t simply that they devastate everything within a defined radius from ground zero. Other weapons have been devised that can do that. What is distinctive about nuclear weapons is that they leave behind a radioactive legacy that poisons generations yet unborn. Thus they cast a permanent shadow over the future. In two important and distinct respects, what the Majority Leader threatens to do is not merely nuclear but thermonuclear in its implications.

First, the substantive area in which the nuclear device is to be detonated is particularly rich in radioactive materials whose half-life is measured not in years but in decades. Each federal judge, and ultimately each Supreme Court Justice, who is confirmed by the new technique will serve for life. Such a judge, even when wielding only a single vote, is empowered to alter the legal landscape we must all share not just during the current Bush presidency but through a likely succession of presidents of both parties and of many different philosophical bents. This President and Senate were put in power by a narrowly divided national electorate not because it prefers judges in the mold of Justices Scalia and Thomas, the president’s unabashed role models for the job, but principally because of 9/11 and a reluctance to change leaders in the midst of the “war on terrorism.”

This assumes something very much not in evidence – that there is a singular published and accepted reason for an electoral outcome. The president campaigned in direct reference to, among other matters, the war, reforming social programs, as well as the appointment of men and women of appropriate judicial demeanor to the bench.

How absurd it is in a constitutional democracy for that national mood suddenly to be transformed, by an unyielding president and a rigidly ideological Senate majority, into a mandate to project into the distant future, and over the opposition of more than enough Senators to have precluded confirmation under the rules that prevailed until now, a firm determination to roll back reproductive freedom, weaken the separation of church and state, disengage from the rest of the world on issues like global warming and genocide, and take other steps so radical that we may well bequeath our children and grandchildren a nation profoundly different from the one we take for granted.

This is simply a partisan preference for some policy outcomes over others. In some respects, as a matter of politics, I may share Professor Tribe’s preferences, though in others I would not. Our preferences as voters and residents of Massachusetts and California, respectively, matter, but they do not determine the meaning of the law or the Constitution. Separating preference from law does illustrate President Bush’s point, however – judges should be appointed who will follow the law as enacted by the people, not as desired by the judges, or Professor Tribe and myself.

Second, unlike the standard procedure in which a small nuclear explosion provides the heat that generates the thermonuclear fusion of a hydrogen bomb, here it is a hydrogen bomb that will have to be detonated first, triggering the nuclear explosion of a radically altered judicial branch. For a change in the currently governing Rules of the Senate is a necessary prerequisite of this transformation in the composition of the judiciary – a transformation that will begin with a handful of circuit court judges but that is of course designed to be reenacted each time there is a vacancy on the Supreme Court. But the currently governing Senate Rules, including those that regulate the conduct and ending of a filibuster by a cloture vote, include a vitally important “meta-rule” providing that the rules themselves may be altered only by a specified supermajority vote.

Yes, the Senate has the power to set its own rules, including the rule on how to change the rules. The Senate has been setting, and re-setting, its rules from the beginning. What has been forgotten, or is being conveniently overlooked, is that every Senate should have at least one opportunity to approve the continuation of carry-over rules. Without this singular opportunity, the Senate is no longer a fully representative body – representing the people who put them in office — but merely the dead hand of the past.

Full Senate consideration is exactly what the framers anticipated. The Senate’s very role in the confirmation process was justified by Hamilton in Federalist Nos. 76 and 77 on the supposition that it would be exercised “by the whole body, by an entire branch of the legislature.” It is only the regrettable, latter-day onset of Democrat filibusters that have defeated nominees for whom a majority of the Senate has expressed support.

That the juxtaposition of majority approval with defeat is deeply problematic for a democracy explains why it is unprecedented to require 60 members (the number needed to end a filibuster) to confirm judges. A judicial filibuster was attempted successfully only once in our history, when LBJ tried to elevate Abe Fortas to be Chief Justice and his nomination went seriously awry over personal financial questions. But Fortas never had the support of a majority of the Senate, and he quickly withdrew. There was some filibuster talk over a handful of Clinton nominees (Breyer, Barkett, Sarokin, Paez and Berson), but wisely, the full Senate voted on each and each went on to serve.

Obstructing judicial nominees with majority support is no small matter. Doing so not only thwarts the President, it also exacerbates the increasingly heavy workload of the independent judicial branch – which, in turn, affects anyone whose life, liberty or property is at issue before a federal tribunal.

The Constitution allows the Senate to set its own rules. Yet, this rule-making power is not unlimited. No one should contemplate the Senate ever adopting a rule categorically excluding women or African-Americans or Catholics from serving on the federal bench. The Bill of Rights would rightly trump such bias. And while there is no similar trump denying a 60 vote requirement to cut off debate on judicial nominations, this super-majority vote requirement is nevertheless constitutionally deficient for one simple reason: this Senate – the 109th – has never adopted it.

The 60-vote cloture rule is a carryover from a previous Senate and merely imposed on the present body. Every two years, the Senate’s composition changes as one-third of its membership stands for election. An ever enlarging group of Senators, led by Senator John Cornyn (R_TX), has rightly asked why they, as more recently elected members, have never had a say over Senate process.

According to the present Democrat leadership, the new guys are just out of luck. You see, they say, another rule requires 67 votes to change the 60 vote rule. And where did the 67 vote rule come from? Yep, it, too, comes from a previous Senate. And so it goes. The people of the several States elect new Senators, but if Senator Reid is to be believed, the new folks are stuck with old rules effectively denying their representational voice.

This cannot be, and is not, the law. An unbroken chain of Supreme Court rulings anchored in English common law as venerable as Sir William Blackstone provides that “every succeeding Legislature possesses the same jurisdiction and power. . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less.”

That the Senate Democrats have disregarded this ancient precept and are operating outside the Constitution has prompted Senator Frist to contemplate asserting the prerogative of a majority of the existing Senate membership to change the carryover rules to allow a similar majority to exercise the power of advice and consent. Derisively, this has been dubbed by the Democrats as “the nuclear option,” but in truth, it is the constitutional one.

And don’t just take my word for it. Consider the following:

“[T]he members of the Senate who met in 1789 and approved the first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . .Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.”


“By what logic can the Senate of 1917 or 1949 or 1959 bind the Senate of [today]. . . .The immediate issue is whether a simple majority of the Senate is entitled to change Senate rules. . . .[I]t is clear that this question should be settled by a majority vote.”

Or simply:

“[Senate rules] could be changed by majority vote.”

The authorities: Senator Robert Byrd (D-WVA), the dean of Senate procedure and author of a magisterial history of the Senate on the Senate floor in 1979; Senator Edward M. Kennedy (D-MA) on the floor in 1975; and Senator Charles Schumer (D-NY) in colloquy with me before the Senate Judiciary Committee in 2003.

That rule stands in the way of deploying the nuclear option for the simple reason that its proponents are far from having the supermajority required by the meta-rule. Their solution? Equally simple: Knock the meta-rule aside either by ignoring it or by “redefining” its meaning by the same narrow majority that wants to take the action that the meta-rule says it can’t take absent a stronger majority — here, confirming all of the Bush nominees to the federal bench by demanding an up-or-down vote. Cutting through the arcane language and the cumbersome procedural maneuvers involved in this revolutionary step, its vice is transparent. We teach our kids when they’re little that rules are made to be followed; that unjust or unwise rules can be challenged and ultimately changed; that the rules for challenging or changing them are especially important; and that those rules, at least while we’re playing the same game, can’t be broken but must be obeyed. What’s true even of a child’s game is doubly true in adult political life. Ripping up the rules for changing the rules is unacceptable if one believes in a rule-governed democracy. For a mere majority simply to plow ahead and have its way even when the rules in place haven’t been changed in accord with their own provision for change is to reduce rules to mere suggestions. And this means, in the particular case of judges, that any time the same political party is in control of the two political branches, even the thinnest congressional majority can see to it that the third branch is dedicated for decades to precisely the ideology that the two political branches at that moment represent.

Again, this is more of a complaint directed at the consequence of losing the last election. To the extent that the argument is meant to suggest that every newly composed Senate lacks the authority to set its own rules for proceeding, it is not supported by history or text.

One needn’t be a fan of the filibuster as a device for making the Senate proceed in slow motion and occasionally freeze in its tracks in order to recognize the enormity of the explosion that threshold step entails before one confirms even a single judge. It is precisely because the Majority Leader, Senator Frist, must likewise see how massive an explosion is involved that he and others offer the reassurance that their nuclear device will be exploded “only” for federal judicial appointments.

Senator Frist has chosen merely to address the unprecedented use of the filibuster against judicial nominees who have majority support in the Senate. The broader merits or demerits of the filibuster may be open to question beyond this – after all, many believe it was disgracefully deployed to deny civil rights for many years – but that is a matter for the Senate to decide as the occasion warrants.

It’s a strange “only,” given the lifetime character of the power being conferred on these judges and the far-reaching consequences of its exercise, and it’s a hollow “only” because there’s clearly no way to make good on a promise that this bomb will be exploded in no other setting and that the Senate will not transform itself into a legislative chamber that, like the House of Representatives, adopts a different rule for debating and passing each action it is about to consider. For the Constitution’s Advice and Consent Clause (Article II, Section 2, Clause 2) speaks in the same breath of the Senate’s role in confirming “Judges of the Supreme Court” and “all other Officers of the United States” covered by the Clause. And the provision empowering each chamber to “determine the Rules of its Proceedings” (Article I, Section 5, Clause 2) does not treat differently the power to promulgate or alter rules depending on the endpoint of the proceedings governed by those rules — whether that endpoint is the confirmation or rejection of a nomination, the ratification or defeat of a treaty, the passage or defeat of a bill, the override of a presidential veto, or the promulgation of a constitutional amendment for consideration by the states. Although the Constitution itself sometimes specifies that a 2/3 majority is needed for one or another step, it leaves to each chamber of Congress the power to decide how to proceed, both when a 2/3 majority is ultimately needed (as with the ratification of treaties and the override of presidential vetoes) and when a mere majority will in the end suffice (as with confirming judges or other officers). And if the Senate may break the very rules it has made to regulate how it will proceed in any of these settings, then it may break the rules for all of them.

That the Constitution specifically calls for a super-majority in several specific instances, but not others, illustrates that there is nothing radical – nuclear or thermo-nuclear – about proceeding by majority determination elsewhere.

For all practical purposes, the pact that connects the current Senate with the Senate that sat in the First Congress — and the pact that most significantly differentiates the Senate as a continuing body with staggered replacements and with fixed modes of proceeding, from the House as a new body every two years and with rules of proceeding fashioned ad hoc for every measure — will have been broken once the power has been asserted to define the Senate’s rules anew whenever a majority is sufficiently determined to have its way and is willing to override its own rules to do so.

The filibuster emerged well after the founding, and quite by accident, when the standard means for calling the question were rather unthinkingly changed; the filibuster is no part of the intrinsic constitutional design.

Having played the game in violation of its own rules “just this once,” the Senate will have crossed an invisible but crucial line, making it difficult if not impossible to resist breaking the rules again whenever a majority of the Senators wish to do so, as a majority — and someday a Democratic majority — most assuredly will. The step proposed is one by which the Senate would have crossed the Rubicon and lost its virginity, and it is not the kind of loss that can be reversed or forgotten.

Whatever ultimate political price those Republican Senators who take that fateful step may pay, and whatever price might be exacted by a frustrated and confused electorate from those (mostly Democratic) Senators who retaliate by using the many formal and informal devices available for slowing the work of the Senate on all other business, all of us will undoubtedly have been made to pay a heavy price indeed. We will all have lost the great virtues of having an upper chamber in our national legislature that not only takes its “advice and consent” role seriously, but also believes in proceeding according to rules established in advance rather than making up and changing the rules as it goes along. It is because I so greatly lament that loss, and not because I fervently love the filibuster — a device that I would be the first to concede has been deployed at least as often for ill as well as for good — that I shudder at the thought of the thermonuclear step that is being proposed.

The Senate should take its advice and consent role seriously; that is why the filibuster should not be used to deny the full chamber the opportunity to speak its mind upon these important nominations.

Professor Tribe and I agree wholeheartedly that the integrity and independence of the judiciary is vital to our constitutional success. Our constitutional assessments do differ over where and when it is appropriate for the courts to set aside the democratic choices of the people. This is a significant question; it is one that is recurring; it is one open to legitimate debate in the Senate – so have the debate in general, or each and every time a nominee is presented, but after a reasonable and responsible period, the debate should be concluded and a vote taken on individual nominees. An offer of public service by any man or woman deserves this courtesy. The constitutional instruction to the Senate is to give “advice and consent,” not to confuse and equivocate.


Subscribe to National Review