A statesman in an age when political parties still occasionally supplied them, Adlai Stevenson once posited that “it is easier to fight for principles, than to keep them.” The filibuster compromisers showed themselves incapable of either.
Almost any nominee for the Supreme Court who is serious about observing the original understanding of the Constitution and a restrained judicial role can be expected to be caricatured as “out of the mainstream” and trigger the Democrat’s “extraordinary circumstance” pretext to filibuster anew. The only beneficiaries of the forfeiture of constitutional principle are a handful of appellate nominees, and one suspects that Janice Rogers Brown, Priscilla Owen, and Bill Pryor are embarrassed by the misbegotten largesse.
The compromise does nothing to address the wrongful refusal of the Senate to perform its proper “advice and consent” function. Worse, it purports to forfeit freely authority reserved by the Constitution to the president–namely, his carefully articulated power of nomination.
The Framers had very definite ideas about how to promote accountability in matters of hiring. Until this week’s compromise, the president was given a slight edge (the power of unfettered nomination and the qualified power of ultimate appointment following advice and consent) since, as the Supreme Court would later observe, “the Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism.” One drafter noted the Constitution’s allocation of appointment authority in favor of the president succinctly: “as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”
The job of occasionally weeding out patronage appointments was never intended to invite the Senate’s own crass politics. The Framers especially wanted to avoid legislative bargaining that would ignore the intrinsic qualities of each candidate–or as Hamilton put it–the sentiment that says “give us the man we wish for this office, and you shall have the one you wish for that.” Hamilton’s words resonate hauntingly since the filibuster compromise does just this: Give us Brown, Owen, and Pryor, but not Kavanaugh, Boyle, etc., or presumably, the next three Supreme Court draft choices.
Federalist 77 extolled not the compromise that Barbara Boxer (D., Calif.) labeled a “wonderful deal and big Democratic victory,” but the virtue of “submitting each nomination to the judgment of the entire branch of the legislature”–what majority leader Bill Frist and Sen. John Cornyn (R., Tex.) called the wisdom of an “up or down vote.” It is not logically possible to deduce from constitutional text approval for a minority of the Senate frustrating the “entire branch.” Hamilton anticipated that Senate disapproval would be limited at most to where there was “special and strong reasons for refusal.” The Framers would not have applauded a filibuster device applied to judicial nominations that invites the Senate to globally impede, rather than carefully and selectively check by, as Hamilton wrote, “general, silent operation.”
If comity required some bipartisan agreement or statement, better it should have been an admission of complicity. Anyone critical of the filibuster for denying the entire Senate its constitutional role should also be honest. Democrats were the first to deploy the filibuster in a grand way against the judiciary, but both parties had a myriad of alternative ways in which presidential nominations were prevented from reaching the floor at all. All these practices should be condemned as constitutional defaults. The default comes at the sacrifice of accountability, or what is popularly termed transparency. Filibusters denying full-floor action or bottling up nominees in committee both dangerously, as Hamilton warned, “shut up in private [and make] impenetrable to the public eye…” the judicial-selection process.
The pragmatic defense of the filibuster was that it would supposedly yield consensus or “mainstream” judicial appointments. Obviously this remains implicit in the compromise that allows the filibuster’s return whenever Democrats feel the “extraordinary” urge. In truth, the filibuster is just a political veto designed to preserve judicial outcomes that have no anchor in constitutional text. When a minority of the Senate can delay or obstruct a fully-capable nominee by reason of partisan or ideological disagreement, “factions,” as Madison called them, have taken over and will erode the independence of the judiciary.
Judicial filibusters were not part of the original constitutional design. Where our fundamental charter wanted a super-majority, in overriding vetoes or impeachment, for example, it clearly provided for it. The framers specifically considered and rejected in the 1787 convention a 2/3ds Senate concurrence for judicial appointments.
Harry Reid (D., Nev.) has been described as “clearly euphoric” by the compromise. He should be. He snookered the Republicans at a critical moment, when soon there will likely be a vacancy on the Supreme Court. What is less explainable is the action of Senator McCain (R., Ariz.). McCain managed to simultaneously injure the Constitution’s structure, the Senate’s authority to set its own rules consistent with its textual duties, and his own aspiration for the presidency by gratuitously thumbing his nose at a large number of American citizens who might have been inclined to give him a serious look. It is a new age when would-be national candidates find it prudent to mock organizations like Focus on the Family, by sneering, “think of all the money they are going to lose.”
It is the Republican and Democrat compromisers who lost. The whole point is to invite to the federal judiciary men and women of integrity, who have a clear understanding of the separation of powers in a democratic republic, and the character and stamina to honor both. The good people who send a few dollars every now and then to Jim Dobson ask for no more. They rightly believe there is, and should be, a difference between law and illicitly-imposed personal preference–a point of principle to which there is no compromise.
–Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is a former constitutional legal counsel to Presidents Reagan and Bush.