Professor Kmiec on Judicial Filibusters

Professor Kmiec's commentary on judicial filibusters is worth a read.

Almost any nominee for the Supreme Court who is serious about observing the original understanding of the Constitution and a restrained judicial role can be expected to be caricatured as "out of the mainstream" and trigger the Democrat's "extraordinary circumstance" pretext to filibuster anew. . . . .

It is my view as well that the political fight over judicial nominations is primarily over how judges view their role in interpreting the Constitution.

The compromise does nothing to address the wrongful refusal of the Senate to perform its proper "advice and consent" function. Worse, it purports to forfeit freely authority reserved by the Constitution to the president — namely, his carefully articulated power of nomination.

The job of occasionally weeding out patronage appointments was never intended to invite the Senate's own crass politics. The Framers especially wanted to avoid legislative bargaining that would ignore the intrinsic qualities of each candidate — or as Hamilton put it — the sentiment that says "give us the man we wish for this office, and you shall have the one you wish for that." Hamilton's words resonate hauntingly since the filibuster compromise does just this: Give us Brown, Owen, and Pryor, but not Kavanaugh, Boyle, etc., or presumably, the next three Supreme Court draft choices.

I think it is very important to take careful note of the following:

If comity required some bipartisan agreement or statement, better it should have been an admission of complicity. Anyone critical of the filibuster for denying the entire Senate its constitutional role should also be honest. Democrats were the first to deploy the filibuster in a grand way against the judiciary, but both parties had a myriad of alternative ways in which presidential nominations were prevented from reaching the floor at all. All these practices should be condemned as constitutional defaults. The default comes at the sacrifice of accountability, or what is popularly termed transparency. Filibusters denying full-floor action or bottling up nominees in committee both dangerously, as Hamilton warned, "shut up in private [and make] impenetrable to the public eye..." the judicial-selection process.

In my view this in one of the most important considerations when looking today at the Senate specifically, and our republican government more generally. It is not clear that our elected representatives these days value public debate in the chambers of the Senate and the House. It appears that our Senators prefer to hide behind a cloture vote, or behind a "hold," or behind a "blue slip." It appears that they are quite comfortable hiding their choices from the public's view because they choose to avoid open debate on matters that seem of some controversy. It seems quite important to me that if there is controversy over a judicial appointment, then the Senators should be on record in debate on the Senate floor explaining the reasons they will cast their vote as they do. Even an "up-or-down" vote is not enough when the question is controversial. It is certainly unacceptable for the choices of the Senators to be hidden on matters controversial. It is also unacceptable for Senators not to state clearly, and publicly, the reasons they vote as they do on matters controversial. I trust our system of republican government works best when this happens, and that our system is depreciated, greatly over time, when Senators hide their choices and their reasons from public debate.

Back to Professor Kmiec:

The pragmatic defense of the filibuster was that it would supposedly yield consensus or "mainstream" judicial appointments. Obviously this remains implicit in the compromise that allows the filibuster's return whenever Democrats feel the "extraordinary" urge. In truth, the filibuster is just a political veto designed to preserve judicial outcomes that have no anchor in constitutional text. When a minority of the Senate can delay or obstruct a fully-capable nominee by reason of partisan or ideological disagreement, "factions," as Madison called them, have taken over and will erode the independence of the judiciary.

. . . .Where our fundamental charter wanted a super-majority, in overriding vetoes or impeachment, for example, it clearly provided for it. The framers specifically considered and rejected in the 1787 convention a 2/3ds Senate concurrence for judicial appointments.