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By AndrewHyman Comments () / Email this page » / Leave a comment »

National Review is now on board with the Senate GOP in supporting the constitutional option to end the unprecedented campaign of judicial filibusters in the U.S. Senate. Here's part of their editorial:

For months, Republicans have been saying that the Senate ought to hold an up-or-down vote on each of President Bush’s nominees for the federal courts. We agree. We also think it’s time for senators to go on record in an up-or-down vote on that question.
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[A] majority of the Senate must decide between upsetting tradition by setting a formal 51-vote rule or upsetting tradition by allowing an informal 60-vote rule. The Constitution does not, in our view, require it to choose one way or the other. . . . For Republicans to leave the filibusters in place now after months of demanding a change would itself be ignominious. . . . The risk that a minority of senators will be able to keep the courts in the business of imposing the Left’s agenda cannot be accepted. It is time to vote to end the judicial filibuster.

This is a very well-considered editorial, and I expect it will further unite the GOP on this issue.

Notice that National Review's editorial asserts that the Constitution does not require its conclusion, and thus NR asserts that the Senate would not be exceeding its rulemaking power by allowing endless judicial filibusters to continue. This same point was made earlier today by NR's Matthew J. Franck, who quoted Chief Justice Marshall's opinion in Brown v. Maryland: "arguments drawn against the existence of a power from its supposed abuse are illogical, and generally lead to unsound conclusions."

Obviously, a practice does not have to be unconstitutional in order to be heinously harmful and abusive, and it does not have to be unconstitutional in order for the Senate GOP to get rid of it. A practice can harm and undermine the country and/or the Constitution, without actually being unconstitutional.

I think that Sen. Frist had it about right today, when he said that an endless judidicial filibuster, "fundamentally disturbs the separation of powers between the branches." Sen. Specter has pointed out that endless judicial filibusters are thus closely analogous to abuse of the impeachment power, which can also disturb the separation of powers (e.g. that almost occurred with the impeachments of Justice Samuel Chase and President Andrew Johnson). Indeed, giving the minority veto power over judicial nominations makes it more likely that the Senate will encroach upon the President's nominating role (by dictating what types of people the president must nominate), and will also encroach upon the independence of the judiciary (by screening nominees according to how they will decide cases).

There are plenty of additional principled reasons for opposing endless judicial filibusters, having nothing to do with the separation of powers. Generally speaking, endless legislative filibusters merely empower a minority to preserve the legal status quo, by preventing enactment of new laws, whereas endless judicial filibusters empower a minority to actually change the legal status quo by demanding judges who will do their bidding. Another principled reason for opposing endless judicial filibusters is that it's important for presidents to be able to shift the direction of the judiciary from time to time, so that in the long run the only surviving precedents will be the ones that are firmly supported by the objective meaning of our laws; presidential flexibility in the nomination process thus discourages politicization of the judiciary, by rendering such politicization futile over the long term.

From a practical point of view, giving a veto to 41 senators would make fringe groups and special interest groups much more powerful. It would become easier for them to shoot down nominations, because they would not have to persuade as many senators. Senate hearings for judicial nominees would therefore be likely to get more rancorous and contentious than ever, and fewer qualified people would be willing to be nominated.

The framers of the Constitution may not have explicitly required up-or-down votes for judicial nominations, but that is certainly what they expected. Here's Hamilton in Federalist 66:

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. . . . Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

The framers never envisioned that a minority would be able to cause interminable delays in order to prevent the Senate from ratifying or rejecting a nomination.