ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

Professor Aaron-Andrew P. Bruhl at the University of Houston Law Center has an article out titled, "If the Judicial Confirmation Process is Broken, Can a Statute Fix It?" (July 27, 2006), available at SSRN. It's a draft article, and the author is accepting comments.

A statute is one of several traditional means to amend the Senate rules, and one possible advantage is that it only requires three-fifths of the full Senate to overcome a filibuster of the rule-change, instead of requiring two-thirds of senators present. Statutory changes in the Senate rules usually include a disclaimer stating that the Senate reserves the right to unilaterally change the rules again, but this ability is inherent in the Senate's constitutional powers anyway.

In 2003, the Senate Rules Committee approved Senate Resolution 138, which would have changed the Senate Rules to place a cap on debate over judicial nominations. This resolution has since vanished down the memory hole without ever having been debated on the floor of the Senate, and without senators ever having gone on record supporting the proposal or opposing it. Why not try implementing S.Res. 138 via statute, before proceeding to use the constitutional/nuclear option again?

Hat Tip: How Appealing.