Procedural Activism

With President Bush's renomination of 7 of the 10 judicial nominees who were blocked last term, the Senate seems geared for a partisan showdown, possibly culminating in the "nuclear option" of scrapping the filibuster. Some cooler heads, such as Senators Spector (R-PA) and Salazar (D-CO), are urging President Bush to withdraw his controversial nominees. With 214 judges confirmed by the Senate last term, surely the President can find a few more like those 214 broadly acceptable judges, without having to be so stubborn about a handful who failed to garner broad acceptance. Senator Shumer (D-NY) is right to characterize the renomination of those 7 as a "thumb on the eye of bipartisanship." Why indeed wouldn't the President build on his .955 "batting average" of successful nominations, rather than obtusely harping on a few "foul balls"? And in sending previously rejected nominees back to the Senate, who is really playing the obstructionist?

Under current procedural rules, the judicial nominations can be blocked by a Senate filibuster, which requires 60 votes to override. This is a reasonable mechanism to insure that judicial nominees garner broad acceptance, and to avert the life appointments of partisan idealogues of any stripe. I have written elsewhere why such supermajorities are a good idea, especially in this case. Even some conservative constitutional scholars, Mike Rappaport and John McGinnis, have argued that such a supermajority mechanism is desirable for Supreme Court nominations. (Some people have asserted that the filibuster is "unconstitutional" because the Constitution does not require a supermajority for judicial nominations. But that argument makes no sense if you look at it. Just because the Constitution does not specify something does not mean it is unconstitutional. Clearly the Senate has the power to set its own rules and procedures. If the filibuster is unconstitutional, then so too is the two-party system, which is deeply embedded in the Senate procedures.)

Normally, Senate rules require a 2/3 vote to change. (Again, there's a good reason for supermajorities to make procedural changes, because procedural changes are a sure sign of partisan shenanigans.) The current threat -- the so-called "nuclear option" -- would be for Vice-President Cheney to declare the filibuster "out of order", a dubious parliamentary maneuver that could be upheld by a simple majority vote. Technically, the Republicans could do that, but the stunt would be short-sighted, ill-advised, and seriously damaging to the institution of the Senate. Not to mention hypocritical. If the Republicans exercised the "nuclear option" for the putative purpose of tamping down on "judicial activism", they would be themselves guilty of the worst form of "procedural activism". For the good of the nation, I hope the Senate remains a "nuclear-free zone".