Bench Memos

NRO’s home for judicial news and analysis.

“Theological activists”?


Following Jonathan Adler’s post of Novak’s article, it seems to me a quote towards the column’s end is noteworthy. Contrary to Democrats’ angry denials that they target nominees in part due to their religious views, Novak reports that Nance Keenan, NARAL’s president,

“…is concerned about ‘out of touch theological activists’ becoming judges.”

Religion plays no part? Really?

Hip Hop Is All About Senate Process


From a People for the American Way press release:

The Hip Hop Caucus heads to Capitol Hill Tuesday to speak out for the filibuster – joining members of the Congressional Black Caucus and People For the American Way.

The Hip Hop Caucus is organizing youth leaders to ensure that young people understand the stakes for their generation in the battle over the filibuster and judicial nominations. Plans for a large-scale, long-term effort to involve students and amplify their voice will be announced at the press conference.

With the showdown counting down next week, the hip hop generation and civil rights veterans are coming together to find common cause – detailing the importance of the filibuster and the federal judiciary in protecting hard-won social justice victories, and making greater progress in the future.


No Compromise


All the talk over possible compromise solutions over the weekend ignore this important fact, which Brother McCarthy and Bill Kristol articulated well last week: The principal reason to eliminate the judicial filibuster is that it is the right answer from an institutional perspective, regardless of who controls the Senate or the White House. The stakes are far greater than the fates of individual nominees, although that is important. The stakes are really about the institutional balance of power–or the constitutional separation of powers, if you prefer–between the Congress and the president. If internal Senate rules can be used to prevent majoritarian advice and consent on judicial nominations, the president’s clearly delineated power to make selections for the federal courts can effectively be stripped from him. In addition to the hypotheticals posed by Andy in his article, what would prevent the Senate from deciding that a supermajority of 70, 80, or 90 was required for appellate court confirmations, given their importance? Why not unanimity? How about special rules for Supreme Court appointments? It takes just a moment’s thought to see that if the judicial filibuster is allowed to survive and thrive, the Senate could effectively put itself in a position to dictate appointments to the president, rather than simply advise and consent to those made by him. This would turn the constitutional scheme on its head and deprive the country of the benefits envisioned by the Framers and explicitly discussed in the Federalist Papers of presidential, rather than congressional, appointments. The only reason that devices like the filibuster and the blue slip have traditionally been tolerated, at least as a theoretical matter, is that they have been used with great restraint and only in truly exceptional cases. (I am not conceding here, of course, that the filibuster has ever actually been used at all against nominees to the bench.) The total abandonment of that restraint is what has really changed over the last few years, and what has set in motion the current confrontation.

Given that no sensible person believes the current party alignment will persist forever, both parties really should be approaching this issue in a high-minded way and trying to divine the right answer from a constitutional perspective. That, I would submit, is an easy task, notwithstanding the well-known tendency of any branch of government to try to aggrandize its own powers at the expense of the others.

What the country needs is not a compromise but a vote on the constitutional propriety of the judicial filibuster. And if the Republicans don’t take that vote now, the Democrats surely will when the worm has turned once more.

How We Got Here & Where We’re Going To


Editorial in today’s WSJ:

This is at its core a political fight, and elections ought to mean something. Republicans have gained Senate seats in two consecutive elections in which judicial nominations were among the most important issues, including against the Senate Minority Leader. The one Democrat from a red state who won last year, Ken Salazar of Colorado, did so by promising to oppose judicial filibusters; he now seems to have changed his mind after sipping the Beltway’s partisan punch.

Perhaps the coming showdown will lead to more political bitterness, but we doubt Democrats will be able to follow through on their pledge to shut down the Senate; the public wants other things done. And who knows? If Democrats can’t succeed any longer in legislating through the courts, maybe they’ll even return to trying to win power the old-fashioned way, through elections.

And how did it begin?

RE: Stone on Nuke Option


It’s difficult to get past Professor Geoffrey Stone’s first paragraph without dismissing his argument. I counted 3 Democrat talking points. And the rest of the piece got worse.


Nominees & Religious Faith


Over the weekend, the Family Research Council’s Tony Perkins had this op-ed in the Washington Post defending his charge that some Democratic Senators have opposed judicial nominees due to the nominees’ religious convictions.

NARAL to Go Negative


Robert Novak reports that NARAL Pro-Choice America is financing background investigations of potential Supreme Court nominees’ financial records.

Frist Puts Up His Dukes


The Senate majority leader has an op-ed in USA Today, declaring: “It’s time to vote.”

Stone on Nuke Option


University of Chicago law prof Geoffrey Stone blogs against the “nuclear option” at the Huffington Post.

More on Compromising



Mr. Reid has proposed compromises that would trade acceptance of some judges for withdrawal of others but leave intact the minority’s right to stop Supreme Court nominees and others. But aides said Friday that Dr. Frist was insisting only on allowing the Senate to hold a vote on each nominee, which leaves open at least the remote possibility that the two sides could avert the showdown if Democrats agreed to allow votes for all the judges and at least a handful of Republicans in turn indicated that they would help Democrats vote down a few of them.

No Nukes


John McCain is peddling and smelling short-of-rule-change compromise still:

Mr. McCain, a critic of the nuclear option, told ABC’s “This Week” he thinks that an agreement will be reached without changing the filibuster rule.
“I believe that, as reasonable people — as we have in the past in the Senate — we should sit down together and work this out,” he said.



FYI, Committee for Justice’s Boyden Gray has a good overview of the judicial confirmation spin wars in Human Events.

Re: Revising the Senate Filibuster Rules


Andy asks whether the Post is correct in suggesting that filibuster reform depends on a determination that the existing filibuster rule is unconstitutional. The Post is clearly not correct.

From what I can tell, there are three or four people who fully understand the intricacies of changing the Senate rules, and I’m certainly not one of them. But Marty Gold is. Based on a discussion I had with him, here’s my understanding:

1. The Senate has plenary power under the Constitution to change its rules at any time. As a constitutional matter, that power can be exercised by a majority of Senators present and constituting a quorum. One traditional means of modifying the Standing Rules of the Senate is for the majority to override the presiding officer’s application of the existing rules. Such override doesn’t mean that the presiding officer was wrong. It means, rather, that the Senate is exercising its plenary power to change the existing rules. In parliamentarian language, the Senate establishes a “precedent” that departs from the Standing Rules. That “precedent” governs Senate proceedings on a going-forward basis.

2. It is crystal-clear that reforming the filibuster does not depend on a determination that the existing filibuster rule is unconstitutional. The Senate has revised its filibuster rule numerous times.

3. As I understand it, the particular procedure that would unfold would involve a determination by the vice president, as president of the Senate, or by the president pro tem or other presiding officer whether the existing filibuster rule applies to judicial nominations. If the initial determination is that the rule does apply, a majority of senators could then vote to override this determination and establish a precedent that the Standing Rule does not apply to judicial nominations. (In the event of a tie, the VP would break the tie, so the votes of 50 Senators are needed.) If the initial determination is that the rule does not apply, a majority of senators would be needed to override this determination and retain the filibuster. Again, this parliamentarian jargon should not obscure that what would really happen is a simple exercise of the Senate’s constitutional authority to revise its rules. So, as I understand it, there would be nothing improper in the vice president’s determining as an initial matter that the existing filibuster rule does not apply to judicial nominations (even though the Standing Rule plainly does). Such a determination would merely be part of the mechanism for changing the rule.

(I have not run the above written explanation by Marty Gold, and any error in it is mine alone.)

There’s a minor side issue as to whether the Senate can formally revise its Standing Rules at any time (as opposed to establishing precedents that effectively depart from the Standing Rules). My own understanding of the Senate’s constitutional power leads me to the conclusion that the Senate can do so, but I’ve heard others express a contrary view (the basis of which I’m unclear on). In practice, nothing turns on this.

Re: Bring Back Blue Slips?


I’m also interested in what people’s views are on the subject Jon has reintroduced. I got a good education on it last week, courtesy of Jon
and others, and didn’t like what I learned.

I also wonder whether — given how the Internet has made the work of individual lawyers and judges so readily accessible in modern times — it really makes sense anymore to presume that senators have special insight regarding the legal community in their states. Certainly, they have special insight into the party politics of their states. But if judge selection should be more about merit and less about patronage, that would seem to argue pretty strongly against blue slips.

The Filibuster Debate


I thank Brothers Franck, Whelan, and Levin for their thoughtful consideration of my article.

I should say preliminarily that I have been gratified by the tone of the reaction, particularly from people who disagree. I was braced for a lot of “you sounded pretty sure of yourself when you were making the argument you now tell us was wrong …” I’d certainly have had that coming. But readers on both sides of this have been very gracious.

Matt and Ed, who disagree with me, get to the heart of the matter, and resolve it the way I used to, so I’m loath to rebut. Nonetheless, I think we part company in some important places.

I agree with the principle that constitutional perfectionism is to be avoided. Provisions of law should not be deemed problematic absent realistic–and better yet, actual–instances of abuse. Here, though, we confront a situation in which the abuse of a power is not merely “supposed” (to borrow Chief Justice Marshall’s phrase cited by Matt) but quite real. For me, this detracts from Ed’s observation about my seemingly absurd example. (I note that until 2001, imagining a filibuster of judicial nominees would probably have qualified as an absurd example; now it’s reality.) It also undercuts Matt’s reliance on Marshall.

That said, there is definite appeal in my two colleagues’ suggestion that disputes over whether powers have been abused should be resolved by the political process rather than by holding them ultra vires. Indeed, much of the objection to the purported “organic” constitution (which I think Ed, Matt, and I share) lies in the principle that where the Constitution is silent, democratic solutions are the rule of the road.

Alas, in ways germane to the present question, that is not the world we inhabit–and I don’t see us ever going back to a time that was either pre-Marbury (as I understood it) or pre-Cooper v. Aaron as Ed puts it. (I certainly defer to Ed on that.) I take it as a given that the Supreme Court has the power to strike down a statute as beyond the power of Congress. I take it as a given that the Supreme Court, in particular, has the power to void an act of Congress which attempts to seize the Court’s authority to interpret the law dispositively. In such instances, we do not wait for the political process to work itself out–for the public to rise up and vote the runaway congress out the door. The acts are declared unconstitutional.

In this instance, to the contrary, we are dealing with a constitutional power of the president rather than the court. That should not matter–they are peers and their constitutional powers of equal weight for purposes of this analysis. We are also dealing with a species of regulation–viz., a senate rule–that is plainly inferior to a statute in the deference it merits. Given that the Supreme Court does not hesitate to invalidate a statute as unconstitutional if upholding it would nullify a constitutional power of the court, how can a mere senate rule be permitted to nullify a constitutional power of the president? (Matt and I simply disagree here about whether the filibuster intrudes on the president’s power. The senate has a proper way to check the president’s prerogatives: it can vote “no.” But I believe it has a duty to vote.)

It seems to me that there is an important difference between the pedigree of the Senate’s power to prescribe its own rules and the pedigree of any particular rule prescribed. It is the prescriptive power that is of constitutional dimension. The resulting rules are not. Congress, analogously, has the constitutional power to prescribe rules (laws) for the conduct of interstate commerce. The rules so prescribed are not themselves extensions of the constitution. They are just statutes. If, pursuant to the constitutional power, congress were to prescribe a rule (or statute) that purported to nullify the courts’ power to determine the constitutionality of commerce laws, that rule would be stricken. It would not be saved simply because the power that enabled congress to enact the rule is indisputably enumerated in the constitution. I believe the same principles should hold true in the confrontation between a senate rule and the president’s constitutional power.

Finally, I don’t think Matt’s analogy to recess appointments works. Even if Matt is right that the recess appointment does not today work as it was contemplated, the fact remains that it is explicitly provided for by the Constitution (Art. II, Sec. 2, cl. 3)–we don’t need to derive it from some other express grant. In contrast, the filibuster is not an express power–it must be derived. It does not have the force of constitutional law. And I was not dealing with anything so amorphous as the “spirit of the constitution.” I am talking about the appointments clause–an enumerated power of the executive.

NRDC Goes Anti-Nuke


Environmental activists have always been anti-nuclear power, so perhaps it’s no surprise that they’re mobilizing against the “nuclear option.” The latest is the Natural Resource Defense Council’s effort to “protect our environment from activist judges!” According to their latest missive, blocking Bush’s judicial picks is actually about the environment.

“Losing the right to filibuster means that President Bush would gain unchallenged power to grant lifetime tenure to judges who could do permanent damage to wilderness, wildlife and the health of millions of Americans currently protected by strict enforcement of environmental laws.”
The NRDC Action Fund has set up this page to allow activists to send e-mails and faxes to home state Senators opposing elimination of the filibuster (although it appears that users can customize the e-mail message however they please).

News Roundup


You can find How Appealing’s round-up of the Saturday judicial confirmation news stories here.

More on Starr’s Views


Orin Kerr has a bit more on Starr’s actual views about judicial confirmations and the filibuster here.

Re: Does It Matter If the Judicial Filibuster Is Unconstitutional?


I’m glad to see Andy McCarthy reject the option of going to court over the constitutionality of the filibuster. (Whose injury would be alleged in a lawsuit, anyhow?) Some constitutional questions really are political ones, not judicial ones.

Now Andy raises the very interesting question, do 51 senators have to hold a good-faith belief in the unconstitutionality of filibustering judicial nominations in order to vote in favor of a “nuclear” ruling from the chair by Vice President Cheney that such filibusters are disallowed under Senate rules? My answer is, not exactly.

It’s true that the Senate’s rules call for 67 votes to change the rules (a rule that itself could be rejected by simple majority when each new Congress begins–but that’s another argument), while only 51 votes are needed to support the presiding officer’s interpretation and application of the rules, however much that application appears to break new ground or reverse an ongoing practice. But I don’t see why the vice president has to state flatly that he regards the judicial filibuster as unconstitutional (which I have argued it isn’t). He need only rule from the chair that such filibusters are improper, an abuse of an otherwise acceptable practice, an unconscionable frustration of the Senate’s proper business, and a break with the historic tradition of giving judicial nominees an up or down vote of the full Senate. Hence they are disallowed under the rules of the chamber.

This would not only have the considerable virtue of according with my interpretation of the Constitution. It would be smart politics, enabling GOP senators who have their own doubts about the constitutional issue to sign on to a vote in support of the chair on much softer, more comfortable grounds that more of them can support.

Orson Scott Card on Filibusters


Famed sci-fi author Orson Scott Card blogs this essay on the judicial filibuster. His conclusion: Ending the filibuster would be courageous, but not necessarily prudent.


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