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Show Filibustering the Filibuster: A Reexamination of the Legislative Role in Establishing A Fair Judiciary Adam Reiser 100 i 90' Figure 8 Percentage of nominations receiving floor votes, U.S. Circuit Court of Appeals, 1977-2003 • - o 1 70-1 60 TB 50 - - n - - -i - ¦S 40-f 30-g 20-£ 10 0- - - - - - - - __ 1 - - - 1977- 1979- 1931- 1953- 196S 1987- 1989- 1991- 1933- 1995- 1997- 1999- 2001- 2003-1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 Filibustering Judicial Nominations Harms the Judiciary The practice of preventing significantly increasing numbers of judicial nominations from receiving floor votes is harming the judiciary, and the remainder of this paper will discuss why it is harmful and offer a potential solution to fix the problem. Although both a Senate majority using special strategic tactics in a "divided" government and a Senate minority using filibusters in "unified" government effectively prevent floor votes, the contention of this paper will focus primarily on arguing against filibusters. Filibusters are especially harmful to government because they represent a minority preventing a majority from acting, whereas "other tactics" to prevent action are practices of the majority. The constitutionality of filibustering judicial nominations is debatable. The Congressional Research Service stated: The question of the constitutionality of a Senate filibuster of a judicial nomination has divided scholars and has not been addressed directly in any court ruling. The constitutionality of the filibuster of the nomination turns on an assessment of whether the Senate's power to make rules governing its own proceedings is broad enough to apply the filibuster rule to nominations. Supporters and critics of the filibuster of judicial nominations disagree about the relative roles of the Senate and the President in regard to judicial appointments, about whether the Senate has a duty to dispose of the President's judicial nominations in a timely fashion, and about whether a simple majority of Senators has a constitutional right to proceed to vote on a nomination. The constitutionality of a filibuster might be challenged in court, but it is uncertain whether such an action would be justifiable (Congressional Research Service, 2005, p. 17). However, regardless of the constitutionality of a filibuster, there are multiple reasons why it is an unwise practice in the judicial confirmation arena. Filibusters frustrate the presidential duty to appoint judges Under the U.S. Constitution, it is the duty of the president to appoint judges "by and with the advice and consent of the Senate." While the Senate may reject any nominee they feel is not fit for judicial office, it is not appropriate to "reject" by leav' ing the nomination in "limbo" for months or even years at a time. The average time a judicial nominee must wait before taking office is increasing significantly. Consider the graph in Figure 9 (Congressional Research Service, 2003b, p. 28): The added time between nomination and confirmation leaves the nominees in a stressful career limbo, not knowing if they will be ever be confirmed, or even receive a vote. One such example of a drawn out wait for confirmation is George W. Bush's 2001 circuit court appointment of Miguel Estrada-Estrada was filibustered for 21 months and finally withdrew his name from consideration in 2003. American Bar Association President Alfred Carlton said of the Estrada filibuster: The spectacle of the Miguel Estrada filibuster grinds on, a living testament to the inability of both sides to cooperatively fulfill the grave constitutional duty entrusted to them... this is to say nothing to the secondary effects current intramural disputes will have on a legion of other nominees- all awaiting hearings or confirmation, many for months or even years at a time, having all put professional careers and private lives on hold (Cornyn, 2004, p.7). Figure 9 Time Between Nomination and Confirmation, Lower Federal Courts, 1977-2002 200 150 100 50 0 r-l m ; - - n ¦ft- n Carlton concluded that judges need to be nominated and confirmed faster. As Carlton notes, in addition to slowing the federal appointment process, cases like Estrada's may deter qualified people considering a career on the federal bench. In response to the increasing time between judicial nom' ination and confirmation, former Chief Justice William Rehnquist said in his 1997 year-end report, "the President should nominate candidates with reasonable promptness and the Senate should act within a reasonable time to confirm of reject them" (Rehnquist, 1997). He repeated the same mes-sage in his 2001 and 2002 year-end reports. The American Bar Association has recommended that "judicial vacancies be filled without delay" (ABA, 1997) and "urges the senate to hear and vote on judicial nominations in an expeditious man' ner" (ABA, 2002). 66 |
