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A Catch in Senate Clogs Judicial Pipeline

May 19, 2003|Douglas W. Kmiec

President Bush is exasperated. Two years ago, he nominated some of the best legal minds in the country to the federal courts; two years later, some of them are tied up in a Senate knot known as the filibuster. The word "filibuster" is derived from the Spanish word for "pirate." It is apt. In a Rose Garden ceremony this month, the president called it "a disgrace."

Now, a bipartisan group of 10 senators elected in 2002, and led by Sen. John Cornyn (R-Texas), asks why the Senate cannot act like statesmen on judicial appointments and why they, as newly elected members, can't bring some sanity -- a "fresh start" -- to this process.

A half-dozen or more times over the weeks, Miguel Estrada, whom President Bush nominated to be the first Latino judge on the nation's second-highest bench, and Priscilla Owen, a Texas Supreme Court justice, have each readily achieved a majority vote and been defeated.

Majority approval? Defeated? Yes, under Senate rules, 60 votes are needed to close debate. Thus, that number -- not a majority -- is needed to confirm judges. This is bad.

Filibusters aimed at judicial candidates stymie the president. Because both parties increasingly (and wrongly) use ideological litmus tests, they also threaten judicial independence and add to the logjam in the courts. Off-camera, every senator would probably agree. On camera, each side engages in an increasingly ugly version of "he started it." The freshmen want to fix this broken process, and to do it they have turned to something overlooked until now: the law.

Specifically, these new legislators have had the temerity to ask their warring elders how it is that the Senate's internal rules can amend the Constitution.

Some of the freshmen argue that the 60-vote requirement itself is the problem. After all, in the seven places where the text of the Constitution requires more than a majority to act, it says so explicitly. It takes two-thirds of both houses, for example, to override a presidential veto, and when Bill Clinton was impeached, his conviction failed for lack of the two-thirds Senate vote required in Article I. There is no similar super- majority requirement for judicial confirmations.

The Constitution allows the Senate to set its own rules. Yet, this rule-making power cannot be unlimited. Americans would never tolerate the Senate adopting a rule categorically excluding women or Catholics from serving on the federal bench.

The Bill of Rights would rightly trump such bias, but unfortunately for the freshmen, the Bill of Rights doesn't expressly deny the 60-vote rule.

The 60-vote requirement for judicial nominees is constitutionally problematic, and here's why. It is simply that this Senate -- the 108th -- has never adopted it. It is a carry-over rule from a previous Senate and merely imposed on the present body. Every two years, there are new leaders and new committees but, oddly, no chance for a majority to write new rules.

According to the Senate elders, like Tom Daschle (D-S.D.) and Richard Durbin (D-Ill.), the freshmen are out of luck because another rule requires 67 votes to change the 60-vote rule. Welcome to the rabbit hole, Sen. Cornyn.

And where did the 67-vote rule come from? Yep, it too comes from a previous Senate. And so it goes. The people of Texas and nine other states may have elected new senators, but the new folks are stuck with old rules denying their representational ability.

This can't be, and isn't, the law. An unbroken chain of Supreme Court rulings anchored in English common law provides that "every succeeding legislature possesses the same jurisdiction and power ... as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."

That the Senate has disregarded this ancient precept and is operating outside the Constitution gives the freshmen a chance to set things right. It's not complicated. Have the same majority favoring Estrada pass a rule amendment restoring the right of a simple majority to close debate on all judicial nominations. If an objection or point of order is raised in favor of the unrepresentative (and unadopted) 60/67-vote rules, the presiding officer should overrule the objection, reminding the objectors that a majority of all elected senators must retain at least one chance in every Congress to amend its rules.

If that's not good enough, those blocking nominations unconstitutionally might be directed to the federal court down the block. Of course, they will find it's short-staffed at the moment.

Douglas W. Kmiec, dean of the Catholic University of America Law School and a senior policy fellow at Pepperdine University, was constitutional legal counsel in the Reagan and first Bush administrations.

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