HIGHLANDS, N.C., March 13 (UPI) -- The U.S. Senate is conducting an episodic filibuster against the nomination of Miguel Estrada to be a U.S. Circuit Court judge. But the Senate is not voting, only arguing about the subject for four weeks and counting --- interrupted occasionally by other business.
What's happening here? Doesn't the Constitution require a majority vote for judicial nominees? Yes. Don't most Senators favor confirming Estrada? Yes.
The Senate's filibuster rule requires 60 senators to end debate. Absent that, Senate opponents can hold the floor forever, so long as 40 agree to do so. The first vote to close debate on Estrada failed with 55 ayes, 44 nays, and one absent. There will be additional cloture votes.
All decisions by Congress must obey the Constitution. Unless it requires otherwise, all decisions are by majority vote. That's what democracy means.
However, many aspects of government are deliberately non-democratic. There are 55 non-democratic clauses in the Constitution as amended. Some require supra-majorities; some forbid certain decisions regardless of majorities in favor. Based on these clauses, and one in particular, 44 senators are violating the Constitution by preventing a majority vote on this nomination.
An early non-democratic clause is Article I, Section 3, clause 1, which gives each state two senators regardless of population. In the abstract, it's "unfair" that Alaska's half a million people have as many senators as California's 34 million. But that compromise was essential to the writing and ratification of the Constitution. The last non-democratic clause, the 27th Amendment, bars a congressional pay raise until after the next election. (This was part of the original Bill of Rights but wasn't ratified until 1992.)
The First Amendment contains four non-democratic provisions. No matter how large the majority, Congress cannot vote to silence a speaker, or a newspaper, or forbid a religion, or halt a political demonstration. Likewise, Article V is non-democratic. To amend the Constitution requires two-thirds of both Houses of Congress and three-fourths of the states.
This choice was deliberate. As Madison, Hamilton and Jay wrote in the Federalist, the Constitution should not be amended by "the mere whim of a majority." All non-democratic provisions were adopted to prevent certain decisions at "the mere whim of a majority."
The Advice and Consent Clause applies directly to the Estrada filibuster. Article II, Section 2, clause 2, gives the president the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, by and with the Advice and Consent of the Senate ... judges ...."
Note the difference between treaties and judges. The latter is democratic; the former isn't. None of the Democrats conducting the Estrada filibuster claims that confirming judges requires more than a majority. But they are using the non-democratic filibuster to prevent that vote.
Doesn't that mean that 44 senators are saying, in effect, "democracy be damned," and "amending" the Constitution by force? Yes.
What can be done about this? Here's where the process gets tricky. Article I, Section 5, clause 2, says, "Each House shall determine the Rules of its Proceedings...." The Supreme Court will never tell either House it must change its rules. So the answer to this conundrum is not in court.
The current Republican tactic is to break the filibuster by embarrassing Democrats before immigrant and Hispanic citizens for blocking the Estrada vote. He is an immigrant and an Hispanic, an accomplished graduate of Harvard Law School, rated "highly qualified" by the American Bar Association, and praised by Democratic and Republican Solicitors General he worked for. But political pressure is not the only way to break this filibuster.
This week, President George W. Bush sent a letter to the Senate, read on the floor by Majority Leader Bill Frist. The president asserted that all judicial nominees by all presidents should receive a majority floor vote. This would solve the immediate problem and prevent its recurrence.
However, this is wishful thinking. A letter from the president plus $1.50 will get you a cup of coffee in the Senate cafeteria. Can the filibuster rule be changed to not apply to judicial nominees?
Senate rules provide that they continue in effect, "unless changed by a vote of two thirds of the Senators." That looks like an even higher burden, 67 senators to change the rules, rather than 60 to end a filibuster. Things aren't always as they seem.
Cloture requires 60 votes, regardless of how many senators are present. The rule on rules requires "two thirds of the Senators present and voting." Let's say that the Republicans gain the support of three more Democrats, increasing the vote to close debate to 58, too few to break a filibuster.
Let's say that six Democrats are absent, in Iowa campaigning for president. Let's say that a snap vote is called at midnight during the filibuster, and seven other Democrats do not reach the floor in time. Two-thirds of 87 senators present is 58, enough to eliminate the filibuster rule for all judicial nominees. Majority rule would be re-established where the majority is intended to rule, advise and consent on judicial nominees.
For 214 years, all judicial nominees to reach the Senate floor have received majority decisions (unless they withdrew). There was one exception: the bipartisan filibuster against Justice Abe Fortas, nominated by President Lyndon Johnson as chief justice. By tradition, the Senate has not allowed its rules to impede its constitutional role of majority votes on judicial nominees.
Tradition is fine, as long as it holds firm. For a century and a half, no president served more than two terms --- because George Washington returned to private life after two terms. After Franklin D. Roosevelt's fourth term, the 22nd Amendment replaced the broken tradition with a constitutional requirement.
The same logic applies here. Democrats have killed a two-century tradition of democracy in the Senate. The broken precedent must be re-established by a Rule that no Senate is likely to break. The application of filibusters to judicial nominations should be stopped, not just for Miguel Estrada but for all judicial nominees, by all presidents, for all time to come.
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(About the Author: John C. Armor practices law in the U.S. Supreme Court and writes books and articles, some on constitutional law. His eighth book will be "These Are the Times that Try Men's Souls," about Thomas Paine).