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Judicial Filibusters and The Constitution


Mark: I still don’t see how anyone can make the argument that filibusters of judicial nominees are unconstitutional with a straight face. It is true that the Constitution sets up supermajority requirements in some instances and does not do so for judges. But it hardly follows from this fact that the Constitution bars a supermajority requirement for ending debate over judges. On its face, the advice and consent clause appears to be silent about the matter. The Constitution is also silent about whether judges should normally have to win the approval of the Senate judiciary committee, but nobody argues that this part of the process is therefore unconstitutional. If someone were arguing that the Constitution required supermajorities and filibusters–and it should be noted that Tom Daschle did make this ludicrous argument–then you would have a fine refutation of them. But I’m not arguing that. I think the general practice of not filibustering judges was obviously constitutional, and that there may be very good reasons for adhering to it. But I don’t see that it is unconstitutional to depart from it, either.

Your analogy to the commerce clause is inapposite. In truth, that clause does not forbid Congress “from passing laws regulating waterflow in toilets.” It is other provisions of the Constitution, such as the Tenth Amendment, that do that, along with the lack of any authorization in the Constitution for such a congressional power. In the case of the filibuster, we have no provision that is the equivalent of the Tenth Amendment, and we have no default rule that Congress can’t set its own rules.