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Show Filibustering the Filibuster: A Reexamination of the Legislative Role in Establishing A Fair Judiciary Adam Reiser confirm or reject the nomination. As previous data has shown, only recently has there been a significant increase in judicial nominations not receiving a vote. Although senators from both parties have spoken out against the practice of preventing floor votes, the current partisan tension has made the filibuster option too difficult to resist, especially when there are party changes in the Senate majority and the presidency. The current guideline of allowing judicial nominations to be filibustered opens too many doors for political revenge that frustrates the constitutional duties of the Senate. Former President Woodrow Wilson commented, "The United States Senate is the only legislative body in the world which cannot act when its majority is ready for action. The remedy? There is but one remedy. The only remedy is that the rules of the Senate be altered so it can act" (Cornyn, 2004, p. 181). Wilson points out a reasonable notion: if a majority of members of a legislative body desire to act, the body ought to be able to act. However, the current Senate rules of allowing a judicial nomination to be confirmed with simple majority vote are a significant exception to Wilson's argument. It is not in the best interest of American government to give a lifetime federal bench appointment to judicial nominees who may have only received 51 votes. With partisan polarization in Washington increasing, any effort toward compromise is commendable. Requiring some minority approval for important decisions such as judicial nominations is one such way to compromise. As data has shown, the minority is establishing a pattern of having some say in judicial nominations; they are achieving this by filibuster currently and, as previously argued, it is harming the judicial nomination process. Changing the rules to require more than a simple majority vote would usher filibustering out of the judicial nomination arena, while also allowing the minority to have their desired say in who is confirmed to the federal bench. However, proposals to change Senate rules themselves can be more complicated than any filibuster battle. Consider the following statement by former United States Senator Arthur Vandenberg, issued in 1945: The rules of the Senate as they exist at any given time and as they are clinched by precedents should not be changed sub-stantively by the interpretive action of the Senate's Presiding Officer, even with the transient sanction of an equally transient Senate majority. The rules can be safely changed only by the direct and conscious action of the Senate itself, acting in the fashion prescribed by the rules. Otherwise, no rule in the Senate is worth the paper it is written on, and this so-called "greatest deliberative body in the world" is at the mercy of every change in parliamentary authority, which means the Republicans are in power today and the Democrats may be tomorrow, and a simple majority can change anything (Reid, 2005). As Vandenberg explained, changing the rules with a simple majority leaves too much room for politicking and partisanship; tides of opinion and political revenge would be given too much influence in such important decisions as the rules under which the Senate operates. Passing a Congressional statute to require 60 votes for a judicial confirmation may be a more appropriate step than changing Senate rules. However, since a 60-vote confirmation standard would take power from the President, it is very likely that a President would veto any bill of this type. A 60-vote statute could also face stiff constitutionality battles in the courts. Hence, a constitutional amendment to require 60 votes on all judicial nominations may be the best remedy to fix a broken judicial confirmation process while also providing a check on all three branches of government. Although the likelihood of such a controversial amendment passing is small, it nevertheless is an option that must be explored to fix what is increasingly appearing as a broken judicial confirmation system. A Check on the Legislative Branch In its most important matters of order, the Senate has built in checks for itself. The Senate Ethics Committee, a body that most can agree must be insulated from partisan influence, prc vides an excellent example. The Senate Ethics Committee has six members, three of which must be Democrat, and three Republican. Four votes are needed to move forward with any action (even if one Senator is absent, giving one side a 3-2 majority, four votes are still required). This committee is intentionally structured so that there must be some level of bipartisanship to conduct any matter that may affect such important matters as to how the Senate's ethical standards will be enforced. Should not judicial confirmations, a process that can determine the shape of an entire branch of government -a branch, like the ethics committee, be insulated from parti' sanship to the maximum extent possible? If so, the Senate needs to restructure the process so that it, too, requires some level of bipartisanship to proceed in this pivotal Senate func' tion. Requiring 60 votes for judicial confirmations is a feasible solution. In the post-Civil War era, one party has held a 3/5 majority (or what the 60 vote requirement would be in today's Senate) 21% of the time (U.S. Senate, 2005). Hence, except in those rare times, when American voters have given a strong senatorial mandate to one party, 60 votes is an appro' priate threshold that would require at least some approval from the minority side of the aisle when confirming a judge. A Check on the Executive Branch To achieve their objectives, presidents are prone to overstep' ping their bounds of authority, as evidenced in the following examples: • In 1801, after being defeated in his attempt for reelection, outgoing President John Adams appointed 18 judges the night before he left office. These infamous "midnight appointments" were intended as an obstructionist gesture to the incoming administration. • In the early 1830's, President Andrew Jackson, in response 68 |
