Bench Memos

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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.

On the Nebraska Decision


Even a stopped clock twice a day tells the correct time. Thursday’s Nebraska decision is so poorly reasoned that one wonders if it is all tongue-in-cheek. Forty-three turgid, confused pages in support of two legal conclusions, one more improbable than the other. The result nonetheless follows from Lawrence v. Texas, and owes more than a little to faulty draftsmanship in a good cause.

The court concluded that Nebraska’s DOMA was actually a Bill of Attainder. Yes, that Bill of Attainder, the one which you naively thought referred to legislative judgments of guilt without benefit of judicial proceedings. Now we are invited to concur that it covers a constitutional provision which denies unmarried couples the benefits of marriage. The court’s reasoning in support here is disastrous, almost obviously insincere. Mercifully, it’s just a few pages at the end.

The court’s reasoning in support of the Romer conclusion is much more involved. Unfortunately, it never quite achieves relevance. It is entirely question-begging. It depends upon some normative–that is, federal constitutional–distinction between legislative and constitutional politics which the court never supplies. This conclusion depends, in other words, entirely upon a missing account of which norms may be enacted by legislators but never by those (e.g., the people) who make constitutions. For myself, I cannot imagine what such an account would look like. Neither, Thursday’s decision suggests, can Judge Bataillon.

To the extent there is any force to this part of the opinion, it is supplied by the assertion that there is no rational basis at all to this political outcome, that it rests upon mere animus towards a particular group. The targeted group is, evidently, comprised of homosexuals. But the force is particularly weak here because the Nebraska plaintiffs are not same-sex couples at all. The plaintiffs are political outfits such as ACLU Nebraska. Besides, the Nebraska law does not actually use the words “homosexual,” “lesbian,” or “sexual orientation.”

Unfortunately, the law was poorly written and, assuming (as the court has to assume) that Lawrence is good law, Judge Bataillon nonetheless landed in the right spot.

Here is what the relevant part of the challenged law says:

The uniting of two persons of the same-sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.
There is an ambiguity here, one which the Nebraska court sophistically exploited in supports of its misplaced legal conclusions. The court did not see that the quick route to its desired conclusion runs right through the ambiguity. And the route is a very short one.

Reading one: The law does not refer exclusively to same-sex relationships involving sexual conduct between the two parties. The law on this reading includes homosexual and lesbian couples but is not limited to them. The law includes other “same-sex couples,” such as Felix and Oscar (The Odd Couple), spinster sisters, grandma raising a foster girl child of 16. On this reading, the law is not targeted specifically at homosexuals, and so it would seem to escape condemnation under Romer. On this reading, however, the law utterly lacks a rational basis. It would prohibit extension of a legal benefit to, say, Felix and Oscar (they are members of the same sex) but it would allow extension of the exact same benefit to, say, Will and Grace. No benefits to spinster sisters, but benefits to an elderly brother and his sister living right next door and otherwise indistinguishable from the spinsters. No benefit to grandma raising her foster girl child of 16, but the same benefit to her neighbor raising a 16 year-old boy. And so on.

Reading two: The law does refer exclusively to same-sex sexual relationships. It does not refer to Felix and Oscar or to spinster aunts living out their days together under one roof. It obviously cannot refer to any married couple (for marriage is reserved to union of man and woman). But, on this reading, the law distinguishes between unmarried same-sex sexually involved couples, and unmarried opposite-sex sexually involved couples. On this reading the Nebraska constitution allows no benefits to the former, but permits the latter to receive whatever the legislature is in a mood to bestow. As far as I can tell, Lawrence forbids just such a distinction.

The Nebraska court stumbled upon a legally defensible outcome. But it is still a perfect example of a) judicial activism in support of a radical agenda, and b) the need for laws which stipulate that no benefits traditionally reserved to married couples be extended to any couple or group–straight or gay–predicated upon the presence or assumption of non-marital sexual acts or relationship.


Whelan’s Example


The commander-in-chief example is, I think, much closer to the Franck point about a joint power. There is no military for a president to command but for Congress creating it and funding it. And the Constitution contemplates an affirmative role for Congress — its declaration of war power.

Does It Matter If the Judicial Filibuster Is Unconstitutional?


On our side, based on what I’ve read, the way the mail has gone, and the lively discussion we’ve been having in Bench Memos, there seems to be consensus that filibustering judicial nominees is a terrible policy, and deep division over whether it is unconstitutional (some are convinced one way or the other, the rest seem skeptical but uncertain). So the question becomes, does it matter?

Some readers ask: If it’s unconstitutional, do we go to court? I vote no on that one. A constitutional tug-of-war of this kind between the executive and the legislature is a political question that the courts should stay out of. I’d rather lose in the arena of public opinion than take the position that the judiciary is not a peer of the other branches but an authority that instructs them how to resolve their squabbles. If the ultimate object here is to appoint judges who respect the American people’s democratic choices, it would seem perverse to try to secure that aim by empowering the courts as lords over the political branches.

My target is much more narrow and, I hope, practical. I would be very interested in my learned colleagues’ views on it, though. There’s been plenty of discussion about whether the senate should change its rules. But oft-overlooked, it seems to me, is the procedure for changing the rules. This is why I have thought the question of constitutionality is highly significant. Here is how the Washington Post described the situation last year:

Changes to Senate rules usually require up to 67 votes if they are especially controversial. But there is one approach–called the “nuclear option” because of its explosive potential–that would require only 51 votes. Republicans could employ it at almost any time after the new Congress convenes in January.

Under this rarely used procedure, the Senate’s presiding officer, presumably Vice President Cheney, would find that a supermajority to end filibusters is unconstitutional for judicial nominees. Democrats would undoubtedly challenge this ruling. But it takes only a simple majority–or 51 votes from the Senate GOP’s new 55-vote majority–to sustain a ruling of the chair. [Emphasis supplied.]

I am no expert in senate procedures, and have been operating under the assumption that the Post has accurately described the state of play. If it has, doesn’t that make the constitutionality issue crucial?

Of course we all want good judges appointed, and if it’s necessary to change the rules to do that we must seriously consider changing the rules. But we’re also committed to the rule of law. I certainly don’t want the Vice President to make a finding that the filibuster is unconstitutional in this context unless there is a good faith argument that it is–and thus I have tried to construct such an argument. Like the rest of us, I would rather lose with my head held high than win by chicanery.

Which brings me again to Ed’s earlier post, which raises some very interesting and important issues. Are we (am I?) operating on an accurate understanding of the procedure and predicate finding of unconstitutionality necessary for a rule change? And if the Senate’s stated interpretation of its standards for changing rules is wrong, is there any realistic prospect of reconsidering that interpretation? In short, (a) is it true that 51 senators should be able to change the rule without finding that filibusters in this context violate the constitution, and (b) if it is true, is it currently politically possible for 51 senators to do so?

Andy, Et Al


I am among a few who aren’t great fans of John Marshall, so I won’t quote him here. I know some of my friends view Marbury as a decision limited to the case before the Court, but its main critics at the time, including Thomas Jefferson, saw it as much more, as do I. Lincoln tried to limit its impact in his response to Dred Scott (including in his first inauguration speech), which is certainly understandable as a political matter, but that’s an argument for another day.

But, respectfully, the argument that the Senate making judicial confirmation more difficult is “no injury to the president’s prerogatives” doesn’t work for me. Of course, the president’s ability to nominate is unaffected, but given that the purpose of the nomination process is to achieve confirmation, the filibuster clearly injures the president’s appointment power.

Moreover, advice and consent is an authority granted to the Senate. As I’ve contended before, the filibuster rule, when used against judicial nominees, denies the full Senate its advice and consent role (unlike blue-slipping or a committee voting down a nominee, where the full Senate can call up the nominee for a vote in any event). The rule, as used today by the Senate minority, is inherently unconstitutional as it blocks the full Senate from exercising its advice and consent role. And so, a rule change, as contemplated, fixes it. (And, yes, I have a similar problem with non-judicial nominees.)

Clearly the Senate is authorized to set its own rules, but there’s a difference between setting internal rules as apply to its legislative function, for which filibusters have been used up until now (albeit even limited in these circumstances as Andy points out), and setting rules that limit the Executive’s role in appointing officials to the third branch of government.

And perhaps I’m being too critical, but there is no joint power to appoint judges. The Senate’s role was intended to be, and up until now has largely been, deferential (if not passive) to the president’s nomination power. As recently as 40 years ago, if hearings were held for nominees to the Supreme Court, they were mere formalities. For most of our history, confirmation occurred without any hearings at all. Obviously the Senate is not required to confirm all judicial nominees. And from our beginning, it rejected several of Washington’s Supreme Court nominees. Still, there is no joint power. The Senate can nullify.


I Join Brother Franck


I abide by Andy McCarthy’s original view that the filibuster rule is constitutional. I’ll add just a few observations to what Matthew Franck has said.

Andy’s example of a Senate rule enabling consideration of presidential appointees only in even-numbered years is, I think, ultimately an appeal to what I will label the fallacy of constitutional perfectionism–namely, the view that if something really bad or abusive might happen, it must be unconstitutional. Generally, a full answer to such examples is that the political process that the Constitution allows will provide the means to correct the abuse. On his example, if the Senate’s action were in fact to be regarded as irresponsible, the populace could put heat on the Senators, and the Senate could quickly change the rule. The key here, of course, is recognizing that the Senate’s plenary power to determine its rules may be exercised at any time by a majority of the senators–or, more precisely, by a majority of a mere quorum. In other words, the Senate may not bind itself even for a single session (or a single week). That also explains why the Senate rule purporting to require a 2/3 vote on cloture for a change to the rules is unconstitutional–and why the Senate can (and in my view should) eliminate the filibuster for judicial nominees.

I also question whether the line Andy draws between those matters where the Senate would have the right to filibuster and those where it wouldn’t can be maintained. Assume, for example, a filibuster of a DOD appropriations bill. That could severely impair the president’s commander-in-chief authority. Which side of the line would it fall on?

One smaller sidepoint: I believe that it was only in Cooper v. Aaron in 1958 that the Court first asserted its preeminence in interpreting the Constitution. The Left has tried to reread Marbury that way, but Marbury stands for the far more limited proposition that the Court may determine the constitutionality of laws in cases that come before it.

Bring Back Blue Slips?


I’d be curious what some of the other Bench-posters think of an idea I floated on The Corner a little while back. Basically the idea was to add one element to Frist’s “compromise” proposal: A pledge to respect blue slips from Democratic senators. As I explained here and here, it seems that the one “fairness” argument Democrats have in the judicial nomination fight is that the Republican majority eliminated the ability of home-state senators to block/influence appellate nominations from their states. I should add that I don’t like the blue slip, and preferred proposals to ensure all nominations get voted upon in the future, but it seemed like a reasonable proposal that would address and substantive complaints Democrats might have about changes in the traditional way of handling judicial nominations — and eliminate any argument that the judicial filibuster is justified to make up for those changes.

A Minor Correction


Just a quick correction to my Friday posting in the interest of complete accuracy: Senator Leahy was still a few weeks away from being Chairman on the day of the May 9, 2001 event, because Sen. Jeffords had not yet defected. But the substantive point is the same, because Sen. Leahy had become Chairman by the time the process of holding hearings started. The Senate switched hands shortly after the May 9 event.

Confirmation And Judicial Philosophy


Thanks to Ramesh for his important correction of the media’s misrepresentation of Ken Starr’s views on filibuster reform. But I think that Mr. Starr’s stated view that senators should not “invok[e] judicial philosophy as a grounds for voting against a qualified nominee of integrity and experience” merits exploration. As a great admirer of Mr. Starr, I am in the uncomfortable position of finding myself in disagreement with him.

Let’s take Mr. Starr’s specific position that Senate Republicans rightly voted to confirm Justice Ginsburg and that it would have been wrong to vote against her based on her judicial philosophy. I am not going to dispute here that it was an acceptable course of conduct for Republicans, in an exercise of deference to the President, to confirm Justice Ginsburg. But I do want to suggest why I think that it would have been proper to vote against her based on her “judicial philosophy”.

There are lots of illegitimate judicial philosophies. One hypothetical nominee might believe, as a matter of “philosophy,” that the petitioner should always lose. Another might believe that the poorer party should always win. And still others, like Justice Ginsburg and other proponents of the phony “living Constitution,” might believe that the Constitution means whatever their moral and political intuitions tell them advances the cause of human progress. Surely everyone would agree that anyone who adheres to either of the first two views should not be confirmed. I likewise believe it proper (and perhaps compulsory, but I’ve promised to set aside that point now) for Senators to vote against anyone adhering to the Ginsburg view, which I believe is manifestly incompatible with the core tenets of our constitutional republic. (For a fuller explanation of my views, see my recent NRO essays here and here.)

The only justification that I can see for the view that senators shouldn’t look to judicial philosophy would be a practical one, premised on a judgment that senators can’t be trusted to distinguish legitimate judicial methodologies from illegitimate ones. The irresponsible attacks of Senate Democrats on President Bush’s judicial nominees obviously provide substantial support for such a judgment.

frist is ready to roll


Senator Frist issued the following statement today regarding the pending battle over the filibuster:

Upon completion of action on the pending highway bill, the Senate will begin debate on fair up or down votes on judicial nominations. As is the regular order, the Leader will move to act on judge nominations sent to the full Senate by the Judiciary Committee in the past several weeks. Priscilla Owen, to serve as a judge for the 5th Circuit Court of Appeals, and Janice Rogers Brown, to serve as a judge for the 9th Circuit Court of Appeals, will be the nominees of focus.

The Majority Leader will continue to discuss an appropriate resolution of the need for fair up or down votes with the Minority Leader. If they can not find a way for the Senate to decide on fair up or down votes on judicial nominations, the Majority Leader will seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees. After the ruling, he will ensure that every Senator has the opportunity to decide whether to restore the 214-year practice of fair up or down votes on judicial nominees; or, to enshrine a new veto by filibuster that both denies all Senators the opportunity to advise and consent and fundamentally disturbs the separation of powers between the branches.

There will be a full and vigorous Senate floor debate that is too important for parliamentary tactics to speed it up or slow it down until all members who wish have had their say. All members are encouraged to ensure that rhetoric in this debate follows the rules, and best traditions, of the Senate.

It is time for 100 Senators to decide the issue of fair up or down votes for judicial nominees after over two years of unprecedented obstructionism. The Minority has made public threats that much of the Senate’s work will be shut down. Such threats are unfortunate.

The Majority Leader has proposed his Fairness Rule: up to 100 hours of debate, and then an up or down vote on circuit and Supreme Court nominations. Further, the Fairness Rule would eliminate the opportunity for blockade of such nominees at the Judiciary Committee. And finally, it will make no changes to the legislative filibuster.

If Senators believe a nominee is qualified, they should have the opportunity to vote for her. If they believe she is unqualified, they should have the opportunity to vote against her.

Members must decide if their legacy to the Senate is to eliminate the filibuster’s barrier to the Constitutional responsibility of all Senators to advise and consent with fair, up or down votes.

I Respectfully Dissent


from the argument made today by my Brother McCarthy. (Remember when Supreme Court justices referred to each other that way? They gave it up long ago, even before abandoning “Mr. Justice” on the eve of Sandra Day O’Connor’s joining the Court. Why they couldn’t use “Sister” and “Madam Justice” when the ladies joined them I’ll never know.)

The current abuse of the filibuster against judicial nominees is a Bad Thing indeed–and it may be appropriate for the majority to put a decisive stop to it with the so-called “nuclear” ruling from the chair–but I cannot regard it as unconstitutional. Andy introduces a parade of horribles under the Senate’s power to make its own rules–that it might adopt a rule to consider presidential nominations only every other year, for instance. But as John Marshall said long ago, “arguments drawn against the existence of a power from its supposed abuse are illogical, and generally lead to unsound conclusions.” The Senate might indeed do any of the things Andy supposes, but I have difficulty seeing any of them as unconstitutional either. Stupid, yes, even politically suicidal; unconstitutional, no.

Contra Andy, there is no intrusion by the Senate on the powers of the president here. The power of naming judges to the federal bench is jointly but not equally held by the president and the Senate, and if the Senate adopts a rule making it extremely difficult to do its part in the process, that is no injury to the president’s prerogatives.

Andy is right that all the arguments but one about the filibuster are “mostly makeweight.” The free speech of dissenters, the promotion of deliberation–these are all hogwash, as he points out. But that one argument for the legitimacy of the filibuster–not for its use in any given instance–is quite good enough: Article I, section 5’s power of each house to “determine the Rules of its Proceedings.” Without getting into the dicier question of what violates the “spirit” of the Constitution, where the “letter” is concerned the decisive argument for the filibuster’s constitutionality is simply that the Senate can do it, and no other institution can gainsay it.

An argument as good or better can be made that the president’s recess appointments of judges are violations of the “spirit” of the Constitution. The clause under which they were made almost certainly did not contemplate the very short recesses and adjournments of the modern Congress, and the intent of this presidential power was surely not to enable presidents to circumvent the advice and consent power of the Senate. But presidents can do it, and have done it, and none can gainsay it. And that, it seems to me, is how a constitution ought to work–each branch with its own undisputed powers, and with ample opportunities to mess with the other branches’ business.

Nobody Puts Baby in a Corner!


Focus on the Family ads not having desired effect in Alaska:

Sen. Lisa Murkowski says she has no intention of yielding to pressure from the Colorado-based evangelical group Focus on the Family, which is calling her a “squishy Republican” in its campaign to prevent Democrats from using the filibuster to block the appointments of some federal judges.

Firing back at the organization, which is running ads against her in Alaska and targeted her during its “Justice Sunday” simulcast to conservative churches around the country last weekend, Murkowski said the group is trying to undermine the Constitution’s separation of power doctrine that has served the nation well for more than 200 years.

“I am NOT squishy,” Murkowski said in a telephone interview from Washington. “This whole deal with Focus on the Family has gotten me mad. They’re not going to put me in a corner this way.”

But even as she resists the organization, Murkowski still is not saying how she would ultimately vote if the so-called nuclear option button is pressed and the Senate must choose whether to continue to allow judicial filibusters….

Re: McCarthy on the Filibuster


Ramesh raises a point that has been addressed by a number of readers as well. I could of course be wrong about the validity of filibusters — I hope not, but I have (no matter how you slice it) been wrong at one point or another. But I don’t think this much should be debatable: Article II, Section 2, Clause 2 does not draw distinctions among the high government officials the president is empowered to appoint. As a matter of constitutional law, if the filibuster is impermissible for any, it should be impermissible for all.

Obviously, the political considerations are different — e.g., lifetime judicial appointments raise different concerns than limited-term executive posts. Also, the fact that no one has tried to filibuster an executive branch official may be a good reason for steering clear of that potential problem in the context of dealing with the judges. But, as a narrow matter of law, I don’t think it would be any more appropriate to filibuster John Bolton than it would to filibuster Judge Pryor.

PFAW in PA, AK and ME


McCarthy on the Filibuster


Andy has written an interesting article on why he changed his mind about the constitutionality of the judicial filibuster. It seems to me that on his argument, the Republicans ought to go further than they are going: They should make it impossible to filibuster Cabinet as well as judicial nominees.

Richard Cohen


has good days and bad days, and today is one of the latter.

He has written about the judicial filibuster before giving the matter any thought. He presents as fact several highly contested claims. He says, for example, that Alberto Gonzales accused Priscilla Owen of “unconscionable judicial activism.” Gonzales plausibly denies that his remark was aimed at her. (Less plausibly, he denies that it was aimed at Nathan Hecht, a fellow Texas supreme court justice at the time. Greg Abbott, another colleague, dances around this issue on our home page.) Cohen suggests twice that Republicans are planning to get rid of the filibuster entirely, which is untrue.

Cohen suggests that all seven filibustered nominees are “extreme” and “Odious,” which not even the Democrats say about all seven. (Some of them are being blocked as payback for Republican judge-blocking under Clinton.) And he “reasons,” essentially, that they must be extreme since the Democrats are blocking them.

Then there’s this weird Cohenism: “Senate Republicans [are] as ignorant of cinema history as they are determined to roll over the minority Democrats.” This comes after Cohen has written about how Mr. Smith Goes to Washington introduced Americans to the glories of the filibuster. Does he really think that Republicans are unfamiliar with the movie? Or that the movie makes an airtight case for filibusters? Or for filibusters of judges? Does he think at all before he types?

End the Filibuster


The time for a vote is now–we have a new editorial up saying as much.

Kyl on the P.R. Battle


Last night, Hugh Hewitt asked Senator Kyl whether Republicans had pulled even in the P.R. battle over judicial nominations yet. Kyl responded:

I’m not sure that we have yet. The problem is that Bill Frist, the Senate Republican Majority leader, did not want to fire the first shot. He said he’s going to try to work out some resolution of this issue, as hard as he can. And the other side decided well, they were ready to go do battle. And so they’ve had all of their outside groups putting on advertising on TV, and they’ve all been making these speeches, and so on. So, I think they got ahead of us in the P.R. battle. Maybe we’re even now, but the fact of the matter is, the argument is on the side of retaining the tradition of the Senate. And an over 200 year old tradition of giving nominees an up or down vote. And far from changing the rules, we are simply restoring that tradition that existed for 200 years, that’s only been broken as a result of the last Congress, when these judges were filibustered by the Democrats.
More of the interview is available at

The Judicial Balance


In reference to Jalk Balkin’s comments (see here and here), it would seem to me that the balance of the judiciary largely reflects presidential voting over the past decades. Republicans have held the White House for 23 of the past 35 years, and 17 of the past 25, so it seems only natural that Republicans have been responsible for the lion’s share of judicial appointments.

Boyle: So Close, Yet So Far


The News & Observer on the latest delay in Judge Terrence Boyle’s bid for confirmation to the Fourth Circuit.


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