Filibusters

The successful filibuster of Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit represents an “enormous step backward,” for the judicial confirmations process that will take extraordinary action to reverse, writes Professor Richard W. Painter for the Star-Telegram.

Painter, who served as the chief White House ethics lawyer for President George W. Bush, writes for the Fort Worth, Texas daily, that during his years in the White House, senators had filibustered some of Bush’s appellate court nominees, and that he saw “firsthand the damage that Senate filibusters do to the judicial selection process, and the hardships they impost on nominees and their families.”

But, Painter said consensus began to build among lawmakers and voters that “filibusters were undemocratic and that senators had an obligation to vote and to allow their colleagues to vote.” Painter notes a “well-researched and well-argued law review article” by Sen. John Cornyn on filibusters of judicial selections. (Painter provides a link to that law review at the Legal Ethics Forum blog.)

In the 2004 law review piece, as Painter notes, Cornyn wrote:

Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. … Filibusters are by far the most virulent form of delay imaginable.

Cornyn’s words, however, were forgotten in the case of Liu. As Painter notes Cornyn along with nearly all the Senate’s Republicans voted to block the nomination.

Painter writes that Bush had taken leadership on the matter during his presidency by “clearly stating that filibusters are wrong no matter which party is in the White House,” and that Republicans should follow his example, and not just with words.

He concludes:

To make that point clear, a Republican president could nominate and send to the Senate for confirmation Goodwin Liu and any other nominee who was filibustered during the past two administrations. And the president should demand an up or down vote. Period – no exceptions.

Visit JudicialNominations.org to get the latest news and commentary on the judicial nominations process.

Sens. Tom Udall, Tom Harkin and Jeff Merkley introduced a rules reform package on the first day of the new congressional session that would, among other things, require continuing debate in order to maintain a filibuster, prohibit the insidious "secret holds" that enable senators to anonymously block a motion from reaching a vote, and limit the amount of debate time permitted on confirmation votes. These changes would have a direct and significant effect on senators' ability to obstruct judicial nominees.

In conjunction with this reform package, Udall (pictured) has released an article about Senate rules reform in the Harvard Law and Policy Review, the American Constitution Society's official journal. In "The Constitutional Option: Reforming the Rules of the Senate to Restore Accountability and Reduce Gridlock," Udall provides legal and historical backing for the Senate's right, at the beginning of each new Congress, to exercise "the constitutional option" and make any changes necessary to the Senate rules by a simple majority vote. It is "unconstitutional" and "contrary to the Framers' intent" for the rules of one legislature to bind its successor, he asserts.

"Inaction" on rules reform has a price, he writes.

The United States Senate has become a graveyard for good ideas - increasingly crippled by the partisan abuse of the institution's own rules. Instead of being the chamber of Congress where legislation is carefully debated and serving as an ‘additional impediment . . . against improper acts of legislation,' the modern Senate too often serves as a brick wall, stifling debate rather than promoting it and disrupting important legislation and nominations for purely partisan reasons.

In a press release issued by a coalition of public interest groups the day before the rules reform package was introduced, ACS Executive Director Caroline Fredrickson pointed to judicial nominations specifically as a significant casualty of Senate rules abuse.

Our nation cannot afford the continuing delay and obstruction of votes on judges and other nominees critical to running our government that has plagued the Senate. ... As the Chief Justice of the United States, and numerous other judges and public officials have noted, our nation depends on these positions being filled. If it requires Senate rules reform to help accomplish this and put an end to the shameless filibuster threats and anonymous holds that impede our government, then the Senate must take that on.

To learn more, visit ACS's comprehensive web resource for judicial nominations, JudicialNominations.org.