Bench Memos

NRO’s home for judicial news and analysis.

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.

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.


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