The Right Coast

March 12, 2005
Solum on the Filibustering of Judicial Nominees
By Mike Rappaport

In response to the op ed that John McGinnis and I wrote, arguing that it is constitutional for the Senate to filibuster judicial nominees, Larry Solum posts a letter that he wrote to the Senate disagreeing with our position. He argues that the Senate has an obligation to advice and consent to judicial nominations and therefore filibusters of nominations that prevent a vote during a session are unconstitutional.

As usual, Larry makes a strong argument, but I disagree. While we have debated this question in the past, in a different form, let me post a brief reply. First, the text of the Constitution does not expressly say that the Senate has an obligation to advice and consent. It only says “the President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.”

Second, Larry relies on a statement made by George Washington, suggesting that the Senate functions as an executive council when it advises and consents and that the President could determine where and when they meet. (Washington did not say the President could govern the Senate’s procedures, but perhaps one might infer that claim.) While Washington’s views are always interesting, that the Senate did not follow his position might be thought to be even more significant.

Third, the claim that the Senate must follow the procedures established by the President seems inconsistent with the constitutional text. The Constitution provides that each house shall determine the rules of its proceedings. Thus, it is the Senate, not the President which determines when it votes and whether a filibuster is allowed. Larry argues that the advice and consent function is part of the executive function, but even if that is true, that does not mean that the Senate does not decide on its own procedures when performing that function. The Rules of Proceedings Clause applies to all proceedings of the Senate, not merely legislative ones.

Finally, Larry argues that there is an obligation, as informed by the Recess Appointments Clause, that the Senate respond to a nomination within a particular session. I don’t really see how this obligation is imposed by the constitutional text. Moreover, while it might be convenient for the Senate to respond so the President can know what further actions he should take, a filibuster can also communicate to the President that the Senate minority will not consent to the nomination. President Bush can then decide whether to nominate someone else or to continue with his nominee. Similarly, if the Senate were to turn down the President’s nominee, he could decide to nominate that person again or to nominate someone knew.

Update: See my additional response to Larry above.