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Show Hinckley Journal of Politics 2006 Filibustering the Filibuster: A Reexamination of the Legislative Role in Establishing a Fair Judiciary Adam Reiser The separation of power is a fundamental characteristic of United States government. However, the mechanics of this separation are tested often, particularly in areas where branches of government directly collide. One such area is the judicial confirmation process, where the Senate, a body of the legislative branch, is charged with confirming or rejecting an executive's appointment to the judicial branch. While the judicial confirmation process has always been affected by political ideology, the use of filibusters to halt judicial nominations has been practiced with more regularity in recent years. This paper scrutinizes the current state of the judicial confirmation process and the appropriate role of the Senate filibuster. It concludes that the use of Senate filibusters to halt judicial nominations is not in the best interest of the judiciary and instead proposes a 60-vote standard for confirming federal judicial nominations. Introduction The debate over judicial filibusters is, I believe, the greatest single constitutional issue to confront the Senate in our lifetime. That is because this issue involves the very special and unique relationship between the Senate and the Presidency and the special relationship between the Senate and the courts. It involves all three branches of government. In addition, it involves the interaction between the minority and majority parties within the Senate (United States Senate Majority Leader Bill Frist, May 2005). President George W. Bush's appointments of judges Janice Rodgers Brown and Priscilla Owen to the D.C. Circuit Court of Appeals highlighted a mounting stress lri the United States Senate. While Brown and Owen gained httle national exposure before May, 2005, they received lrnrriediate notoriety when mentioned in the context of a Potential dramatic change in American government: ending trie use of Senate filibusters regarding judicial confirmations. °ro\vn and Owen were initially appointed to the D.C. Court °f Appeals, widely considered the second most powerful court iri the country, in 2001 and 2003, respectively. However, °rown and Owen were two of ten judges that were strategically filibustered during President George W. Bush's first term °f office. Although Brown and Owen were both eventually confirmed in June of 2005, the debate around their nominations reflects an increasing partisan polarization in Washington that is transforming judicial1 confirmations. This situation prompts further inquiry into the status of the judicial/legislative relationship: • What is the appropriate legislative role in judicial appointments? • What is the appropriate role of the Senate filibuster? • Should the U.S. Senate consider changing its judicial confirmation policy? This paper argues that the judicial confirmation process needs to be changed. A variety of current influences, which will be discussed in greater detail, has given a new face to the political battles that perpetually surround all branches of government, the judiciary not excluded. While the politics surrounding the judiciary may not be dramatically increasing, interest groups have had greater impact and success influencing judicial confirmations in recent years. A central contention of this essay is that increased interest group influence in the politics of judicial nominations has sparked a significant response from the United States Senate. A primary marker of this response is the increased use of the Senate filibuster. While the filibuster was originally intended as a tool to extend debate on controversial legislative agenda items, senators now use the filibuster as a weapon to block unwanted judicial nominations. 'The words "judiciary" and "judicial" refer to the United States Supreme Court, the U.S. Circuit Court of Appeals, and the U.S District Courts. The phrase "The Court" refers to the U.S. Supreme Court. 59 |