The Senate, judges, and the filibuster

As a showdown looms over judicial nominees, both sides of the aisle turn to the Constitution.

Wrapped in the sanctity of the US Constitution, the debate over the "nuclear option" to end judicial filibusters sounds patriotic, almost noble.

Republicans say they are protecting the nation from a minority of Democratic senators seeking to impose a 60-vote supermajority on judicial confirmations when the Constitution requires only 51 votes.

Democrats say they are protecting the nation from an attempt by the Republican majority to undermine the framers' careful design of checks and balances within the Senate.

On one level, the deadlock over President Bush's appeals-court nominees, and the related debate over the so-called nuclear option, increasingly resembles a "political game of chicken," as one analyst puts it. But by presenting constitutional themes and invoking the work of the Founding Fathers, senators on both sides of the aisle are escalating the confrontation beyond mere politics.

"Constitutional politics" is how Michael Les Benedict, a legal historian at Ohio State University in Columbus, views it. "It raises the matter to an issue of principle," he says.

So who holds the constitutional high ground? As in most high-stakes disputes involving fundamental issues, a range of compelling arguments support both sides.

The debate revolves around three related provisions: the Constitution's advice and consent clause, the congressional rules clause, and Senate Rule V.

Article II, Section 2, of the Constitution says in part that the president shall have the power to nominate and appoint judges "by and with the advice and consent" of the Senate.

While the same clause requires a two-thirds Senate vote to ratify treaties, it sets no specific requirement for judicial confirmation.

That suggests that it takes a simple majority of 51 votes to confirm a judge, which has been the historic practice. But some legal analysts say that nothing in the Constitution prevents the Senate from setting a higher standard.

The Constitution also says in Article I, Section 5: "Each House [of Congress] may determine the rules of its proceedings." Senate rules permit members to engage in filibusters to stall judicial confirmation votes. Under Senate Rule XXII, even though only 51 votes are needed to confirm a nominee, it takes at least 60 votes to end a filibuster. In addition, the rule says any attempt to change a Senate rule requires the support of two-thirds of the senators "present and voting" (67 votes if all 100 senators are participating).

It is those higher vote requirements that are the intended target of the nuclear option. Under that option, the Republicans would use a majority vote (rather than 67 votes) to change the filibuster rule from 60 votes to 51 votes.

That would implicate Senate Rule V, which says that the Senate's rules shall continue from one Senate to the next "unless they are changed as provided in these rules."

Republicans say the combination of Rule V and open-ended Democratic filibusters of judges can result in unconstitutional entrenchment, rendering Rule V invalid. This is why some Republicans are calling it the "constitutional option." Democrats say the rules are clear and fair, and should not be unilaterally changed in the middle of a heated dispute.

Overall, Republicans and their supporters say there is a constitutional duty to provide the Senate's advice and/or consent through an up-or-down majority vote on each presidential nominee. To use a filibuster to block a majority vote is to rewrite the Constitution and undermine the fundamental concept of majority rule, they say.

Democrats and their supporters stress that the Senate must follow its own rules when carrying out advice and consent responsibilities. The filibuster rules are designed to protect the interests of the minority party by creating an incentive for majority senators to reach out for compromise rather than adopting a winner-take-all approach. The result of compromise is almost always better government, they say.

"Democratic senators represent a majority of the population, but they are a minority in the Senate," says Erwin Chemerinsky, a constitutional law professor at Duke University in Durham, N.C. "The filibuster in part is a reflection of that - the way in which senators who represent the majority can act as a check on the majority of senators who represent a minority of the population."

Professor Chemerinsky says the Republican focus on a majority vote is misplaced. "The filibuster doesn't change the fact that to be confirmed it takes a majority," he says. "The filibuster's role is what number of votes does it take to end debate. And there is nothing in the Constitution about the number of votes it takes to end debate."

Not every constitutional scholar is siding with either the Democrats or the Republicans. "I think both sides are wrong," says John McGinnis, a constitutional law professor at Northwestern University School of Law in Chicago.

Professor McGinnis and Michael Rappaport of the University of San Diego School of Law have identified what they see as a constitutional anomaly in how the Senate rules function. First, they say, the Republicans are wrong by insisting that judicial confirmation is limited to a majority vote. "There is nothing in the advice and consent clause that says the Senate cannot choose to have a confirmation rule by something other than a majority," McGinnis says.

Second, they say, the Democrats are wrong by insisting that the Senate rules can require more than a majority of senators to change any rule. "If a majority could adopt a supermajority rule that could not be repealed by the majority, they could do all kinds of things," says Professor Rappaport. "It would not be necessary to pass a constitutional amendment when the First Congress adopted the Bill of Rights. They could have passed a statute and then just one house, the Senate, could have said, 'This statute shall not be repealed without the consent of 100 percent,' " he says.

"That is extremely odd to think that a single house of Congress could insulate something when in fact legislation requires both houses of Congress to pass, and presentment to the president," Rappaport also says.

The professors say there would be nothing unconstitutional about a Senate rule requiring 60 votes to confirm judicial appointments, but a simple majority of senators must always have the ability to change the rule.

"I disagree on every level," Chemerinsky says. "If Congress were ever to say it takes a 100 percent vote - or 60 or 80 percent - to change this law ... I think that is unconstitutional entrenchment."

To Senate historian Richard Baker, such heated debates are nothing new. "Isn't it wonderful to drape the mantle of the Constitution around what it is you want to accomplish?" he says. "You can't blame people for trying, and they have been doing that for a long time."