The greatest impact of George W. Bush’s second term will likely be from his judicial nominations, including the appointment of one or more Justices to the Supreme Court. The President’s selections will have long-lasting effects on all aspects of American life, including our health, our freedoms and our privacy. Senate conservatives, led by majority leader Bill Frist, have already launched a determined campaign to insure that any potential opponents are silenced–principally by attacking the Senate’s most effective tool, the judicial filibuster. A closer look shows right-wing arguments for doing so are based on a series of myths about the Constitution, history and the right wing’s own conduct.
Myth 1: Judicial filibusters are unconstitutional. Frist and other Republicans adamantly argue that efforts to challenge Bush’s judicial nominees via filibuster are unconstitutional. This past November Frist said, “After much debate and compromise, the Framers concluded that the President should have the power to appoint. And the Senate should confirm or reject appointments by a simple majority vote. This is ‘advice and consent.'”
Frist and company love talking about the Constitution and what the Framers intended. But they should get their facts straight. There is nothing in the Constitution requiring the Senate to “confirm or reject appointments by a simple majority vote.” The Appointments Clause of the Constitution requires the consent of the Senate before judicial nominees are appointed. The Rules of Proceedings Clause gives the Senate the power to determine the method of consent. It doesn’t matter how many times Frist says it: There is no requirement for the Senate to confirm or reject a nomination. No vote means no consent: And that’s OK.
In 2003 Judicial Watch, a conservative advocacy group, filed an ultimately unsuccessful lawsuit against the Senate, claiming that the judicial filibuster was unconstitutional. Although no text supports its argument, Judicial Watch argued that it’s implied that the Senate’s “advice and consent” power must be exercised by a simple majority vote, because it’s consistent with the “ordinary principle of majority rule.” Nice try, but that position is actually antithetical to the intent of the Framers, who were careful to make sure the majority didn’t always rule. James Madison wrote in The Federalist Papers that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The Senate was created, in part, to prevent the problems associated with the tyranny of the majority.
The real culprit here is Bush, who has ripped the “advice” out of “advice and consent.” He has stubbornly refused to substantively communicate with any senators who oppose his nominees. When the Senate fails to confirm his nominees, Bush just reappoints them or, worse, bypasses the Senate altogether and installs them on the bench during a recess. This kind of toxic environment makes judicial filibusters more likely.