Bench Memos

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.

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