Q: Should Senate rules be changed to limit debate on judicial nominations? YES: The cloture rule should be revised to allow a simple majority to close debate on nominees

0 Comments | Insight on the News, July 22, 2003

Byline: Douglas W. Kmiec, SPECIAL TO INSIGHT

For months now more than a majority of the U.S. Senate has been prepared to confirm several highly talented men and women to seats on the federal bench. Yet Miguel Estrada, President George W. Bush's nominee to be the first Hispanic to serve on the prestigious U.S. Court of Appeals for the D.C. Circuit, and Priscilla Owen, a Texas Supreme Court justice who has been nominated to the 5th Circuit, can't be brought to a vote. Others are bottled up as well California state Judge Carolyn Kuhl, nominated to the 9th Circuit, and Alabama Attorney General Bill Pryor, nominated to the 11th, are likely filibuster targets. And goodness knows what will happen when there is a Supreme Court vacancy.

Why? Because a minority, under present Senate rules, prevails over a majority even though that topsy-turvy proposition is nowhere to be found, as might be imagined, in the U.S. Constitution. Well, you say, just change the rules. Sure, says the Democratic minority, all you need is 67 votes. Whoa! Wait a minute, says Sen. John Cornyn (R-Texas), who was elected in 2002. I never had a chance to vote on these odd existing rules, and neither has a bipartisan group of 10 freshman senators. Too bad, says the minority. We not only determine the outcome, we also entrench our control of it by a two-thirds (67-vote) rule-change requirement that is carried over from a previous Senate.

This makes no sense, and Senate Majority Leader Bill Frist (R-Tenn.) has introduced a straightforward resolution to untangle the mess. S. Res. 138 seeks to amend rule XXII of the Standing Rules of the Senate to provide for more timely consideration of all nominees requiring the advice and consent of the Senate. The proposed amendment would accomplish this by providing for declining majorities for subsequent cloture votes to close debate on nominations until, on the fourth try, only 51 votes would be needed.

The Senate Rules and Administration Committee now has sent S. Res. 138 to the floor and, even though the proposal makes tremendous sense, it's headed for a fight. Majority leader or not, Frist is being told he can't have it unless he has a supermajority of 67 votes. The Democratic position is flat out unconstitutional.

The unconstitutionality of allowing a previous legislature to prevent a subsequent one from exercising its full legislative authority is age-old and near axiomatic. Sir William Blackstone posited that "acts of parliament derogatory from the power of subsequent parliaments bind not." This understanding is embedded in our Founders' own suppositions about legislative power. James Madison and Thomas Jefferson both felt strongly about religious freedom and secured the enactment of the Virginia Statute on Religious Freedom. But however much they wished that enactment never to be repealed or altered, they acknowledged expressly that a legislative assembly has "not [the] power to restrain the acts of succeeding assemblies, constituted with powers equal to [their] own, and that therefore to declare this act irrevocable would be of no effect in law."

This precept is unassailably a part of preserving the "consent of the governed." The U.S. Supreme Court simply cited authority in a 1996 decision for the principle, noting that "the will of a particular Congress does not impose itself upon those to follow in succeeding years" and that the principle is "so obvious as rarely to be stated."

True, we all are bound by the "higher law" of the Constitution that also binds successive Congresses, but that is because the Constitution is by design intended to last "for the ages," a point underscored by the supermajorities needed for its amendment in Article V (two-thirds of both Houses and three-fourths of the states to ratify). Goodness knows, as venerable as Senate rules may be, they are not of that lofty status.

A Senate minority cannot constitutionally deprive the whole body of the present Senate of at least one opportunity to ratify, amend or repeal carryover rules from a previous Senate. Because this opportunity has not yet been afforded the Senate of the 108th Congress, Frist's proposal in S. Res. 138 is not an attempt to jettison constitutional practice, but to follow it.

For partisan reasons, Sen. Robert C. Byrd (D-W.Va.) is unlikely to be behind Frist's proposal. Byrd nevertheless is in my book the dean of Senate historians, and there is weighty authority to be found in the Byrd treatise on the Senate supporting Frist. For example, Byrd quotes Sen. Thomas J. Walsh (D-Mont.) in 1917 as writing that "each new Congress brings with it a new Senate, entitled to consider and adopt its own rules."

For example, at the beginning of the 85th Congress, Sen. Clinton Anderson (D-N.M.) moved to adopt new rules. His motion was tabled but, before the matter was concluded, then-vice president Richard Nixon gave the opinion of the chair that although it was common practice to continue rules from one Congress to the next, "the current Senate could not be bound by any previous rule which denies the membership of the Senate the power to exercise its constitutional right to make its own rules."