Sunday, March 20, 2005
On this day:

Federalist Friday - Judicial Confirmations, the Filibuster, and the "Nuclear Option"

Republicans in the U.S. Senate are considering use of the so-called “nuclear option,” – or as they call it, the “constitutional option” - in order to break the Democratic filibuster that has prevented confirmation of President Bush’s judicial nominees.

The potential use of this parliamentary maneuver has infuriated Democrats, who have threatened to shut down virtually all business in the Senate if it is invoked.

A letter from Senate minority leader Harry Reid (D., Nevada) to majority leader Bill Frist (R., Tennessee) states that the tactic "would remove one of the constitutional checks and balances that has served our country so well for over two centuries." He goes on to say:

The role of the Senate in the confirmation of presidential nominees is a central element of our democracy. The Framers of the Constitution created a system of checks and balances to limit the power of each branch of government, and in that way to protect the rights of the American people. The Senate's review of judicial nominees is especially important because federal judges are the only government officials to receive lifetime appointments. These men and women will serve on the federal bench for decades, making far-reaching decisions that affect all Americans...

The power to confirm judges includes the right to use well-established Senate rules to reject nominees. No one has seriously doubted that right in over 200 years, and Senators have exercised it in recent times...

Reid raises a legitimate constitutional question: Would restricting or eliminating use of the filibuster in judicial confirmations “remove” one of the checks and balances established by the Constitution? More specifically, would it undermine the Senate's “advice and consent” role in judicial nominations? For an answer, it is helpful to look at what the Constitution's Framers had to say about the subject.

The appointment power is spelled out in Article II of the U.S. Constitution, which states that 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

In Federalist #76, Alexander Hamilton discusses this power in great detail. In his defense of the system adopted in the Constitution, he discusses three practicable methods by which the appointment power could be exercised –1) “by a single man”, 2) “in a select assembly of a moderate number”, or 3) “in a single man with the concurrence of such an assembly.” The third method – nomination by the President with the advice and consent of the Senate - was the one selected by the Constitution’s Framers.

Hamilton proceeds to discuss the relative advantages and disadvantages of each method. First, he compares the merits of the first two, arguing that vesting the “sole and solitary responsibility” of appointments in a single man would be preferable to delegating it to an assembly.

…one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even of superior discernment.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.
In other words, if the President were given an “undivided” power to appoint federal officials, he would know that his reputation would be subject to all the praise, or all the blame, for the quality of his appointments. Vesting the appointment power exclusively in the Senate or some other assembly, on the other hand, would inevitably result in partisan conflicts and deal-making that would prove detrimental to the “public service.”

Having established that appointment by one man would be superior to appointment by a body of men, Hamilton then goes on to argue that the Convention’s decision to divide the appointment power between the President and the Senate would result in the best possible outcome.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. And, in addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in
proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
Thus, Senate concurrence is required 1) to check "a spirit of favoritism in the President," 2) to promote "stability in the administration," neither of which would be impaired by a limitation on the filibuster.

It is safe to say that Harry Reid and the Democrats are mistaken in their criticisms of the "nuclear option." It is implausible that efforts to restrict the use of the filibuster would infringe on the Senate's advice and consent role as envisioned by Hamilton and the Framers. If anything, restricting use of the filibuster would restore the balance of power by reaffirming President’s prerogative in nominating candidates for federal offices. Abuse of the filibuster brings with it a requirement that nominees be acceptable to a supermajority of 60% in the Senate. This has produced results similar to those Hamilton spoke of when discussing the disadvantages of appointment by an assembly - "a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly."

In case any further convincing is needed, here's one more argument from Federalist #76, in which Hamilton addresses criticism that the Constitution's method of appointment could give the President too much influence over the Senate.
…A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate.
Hamilton and the Framers anticipated that a majority would be required for confirmation of presidential appointments, not a supermajority . Thus, it is entirely legitimate that Senate rules enforcing such a requirement are not only debatable, but amendable and subject to repeal.

(Yeah, yeah...I'm a couple of days late in making this "Federalist Friday" post...but at least I started writing it on Friday. That counts for something, right?)