SUDDENLY DEMOCRATS ARE WRAPPING THEMSELVES in the Constitution. Emphasizing his commitment to maintaining the filibuster as a way to stop President Bush's judicial nominees, Senate Democratic whip Richard Durbin said last week, "We believe it's a constitutional issue. . . . It's a matter of having faith in the Constitution." The trouble is, the filibuster is nowhere mentioned, or even implied, in the text of the Constitution.
Suddenly, too, European liberals are discovering the virtues of the Founding Fathers. On the same day that Durbin was confessing his faith in the Constitution, the editors of the Financial Times were urging Bill Frist to "cease and desist" his efforts to break the filibuster, imploring him to "reread the wisdom of the Federalist Papers." The trouble is, the filibuster is nowhere mentioned, or even implied, in the Federalist Papers.
What's really going on here, of course, is this: President Bush, having been elected and reelected, and with a Republican Senate majority, wants to appoint federal judges of a generally conservative and constitutionalist disposition. The Democrats very much want to block any change in the character of the federal judiciary--a branch of government they have increasingly come to cherish, as they have lost control of the others. It's a political struggle, not unlike others in American history, with both sides appealing to high principle and historical precedent.
But it happens to be the case that Republicans have the better argument with respect to the filibustering of judicial nominees. The systematic denial of up or down votes on judicial nominees is a new phenomenon. Republicans are right to say that it is the Democrats who have radically departed from customary practice.
More important, perhaps, the customary practice of not filibustering presidential nominees--whether for the judiciary or the executive branch--is not a mere matter of custom. It is rooted in the structure of the Constitution. While the filibuster of judges is not, in a judicially enforceable sense, unconstitutional, it is contrary to the logic of the constitutional separation of powers.
As David A. Crockett of Trinity University in San Antonio has explained, the legislative filibuster makes perfect sense. Article 1 of the Constitution gives each house of Congress the power to determine its own rules. Senate Rule XXII establishes the necessity of 60 votes to close off debate. With this rule, the Senate has chosen to allow 40-plus percent of its members to block legislative action, out of respect for the view that delaying, even preventing, hasty action, or action that has only the support of a narrow majority, can be a good thing. As Crockett puts it, "Congress is the active agent in lawmaking, and if it wants to make that process more difficult, it can." One might add that legislative filibusters can often be overcome by offering the minority compromises--revising the underlying legislation with amendments and the like.
There is no rationale for a filibuster, however, when the Senate is acting under Article 2 in advising and consenting to presidential nominations. As Crockett points out, here the president is "the originator and prime mover. If he wants to make the process more burdensome, perhaps through lengthy interviews or extraordinary background checks, he can." The Senate's role is to accept or reject the president's nominees, just as the president has a responsibility to accept or reject a bill approved by both houses of Congress. There he does not have the option of delay. Nor should Congress have the option of delay in what is fundamentally an executive function of filling the nonelected positions in the federal government. In other words--to quote Crockett once more--"it is inappropriate for the Senate to employ a delaying tactic normally used in internal business--the construction of legislation--in a nonlegislative procedure that originates in a coequal branch of government."
This is why the filibuster has historically not been used on nominations. This is the constitutional logic underlying 200-plus years of American political practice. This is why as recently as 14 years ago the possibility of filibustering Clarence Thomas, for example, was not entertained even by a hostile Democratic Senate that was able to muster 48 votes against him. The American people seem to grasp this logic. In one recent poll, 82 percent said the president's nominees deserve an up or down vote on the Senate floor.
They are right. History and the Constitution are on their side, and on majority leader Bill Frist's side. When the Senate returns from its recess, the majority leader should move to enact a rule change that will break the Democratic filibuster on judicial nominees, confident in doing so that he is acting--the claims of Senator Durbin and the Financial Times to the contrary notwithstanding--in accord with historical precedent and constitutional principle.