senate committee rejection of judicial candidates

[Taylor, Paul]

I'm certainly no expert on Senate procedure, but I understand that Senators
may resort to filibusters to prevent confirmation. See Michael J. Gerhardt,
The Federal Appointments Process: A Constitutional and Historical Analysis
(2001) at 143.  Should a Senator filibuster, the Senate has no means to vote
a limit on consideration of the matter except under the cloture rule (Senate
Rule XXII) which requires, for a vote to occur, the approval of three-fifths
of the full Senate.  Under Senate Rule V, Senate rules can be suspended only
with a two-thirds vote of the senators.  I, too, don't have the Senate Rules
in front of me, but see Rotunda and Nowak, 2 Treatise on Const. L. § 10.5
(3d ed.) ("The Senate rules can be suspended with a two-thirds vote of the
senators [citing Senate Rule V] and almost anything else is permissible
under the rules if unanimous approval is obtained.").  Regarding the
Senate's ability to change Rule XXII by majority vote, Senate Rule V
provides that "The rules of the Senate shall continue from one Congress to
the next Congress unless they are changed as provided in these rules."  Rule
XXII specifically provides that cloture on any motion to amend the Senate
Rules requires the agreement of two-thirds of those present and voting.
Therefore, a simple majority of the current or any future Senate could not
repeal or modify Rule XXII.

Also, if anyone is interested, I believe Senate Rule XXXI sets forth more
specific Senate procedures for handling nominees, and there may be other
pertinent information there.

-----Original Message-----
From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
Sent: Saturday, March 23, 2002 3:29 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: senate committee rejection of judicial candidates


Paul Taylor demonstrates a fundamental misunderstanding of my second
point, and simply doesn't address my first one.  The second point is not
that the Senate can *change* its rules, but that -- by majority vote --
it can, when a majority wishes for particular occasions, waive or
suspend the operation of any of its rules already in place.  And none of
the quotations offered says anything about the relation between the
unquestionable power of (a majority of) the Senate to determine its own
rules and the asserted obligation of (a majority of) the Senate to
consider nominations on the merits.  Put another way, the majority check
on minority faction is exercised at the point of establishing the rules
(and not suspending them on particular occasions).  At the very least,
anyone who argues that there's a constitutional problem with the
Senate's practice has to say *something* about the Senate's power to
determine its own rules -- which no one on that side in this exchange
yet has.  And, of course, to say that rules or practices that interfered
with the asserted obligation would disrupt the balance established by
the Constitution is to restate the assertion, not to support it with
argument.

It once was that liberals asserted that rules requiring supermajority
votes (the filibuster, the rule instituted in the House requiring a
supermajority for tax increases) were unconstitutional.  There's an
article by John McGinnis in Yale invoking (surprise, surprise) the power
of each house to determine its own rules to defend the constitutionality
of supermajority internal rules.

To the extent that anyone takes Rep. Chabot's position seriously, it
simply demonstrates the vacuity of constitutional argument as a practice
with intellectual (rather than political) integrity.

----- Original Message -----
From: "Taylor, Paul" <Paul.Taylor at MAIL.HOUSE.GOV>
Date: Saturday, March 23, 2002 1:42 pm
Subject: Re: senate committee rejection of judicial candidates

> Any rules or practice that barred full Senate votes on
> presidential nominees
> would of course disrupt the constitutional balance established by the
> Founders.
>
> Also, a change in Senate rules requires a two-thirds vote, not a
> majorityvote. See Senate Committee on Rules & Administration,
> Standing Rules of the
> Senate, S. Doc. No. 102-25, at 15-16.  Requiring a change in
> Senate rules to
> allow full Senate votes on judicial nominations would in effect
> subject a
> vote on judicial nominees to a 67-vote requirement.  That would
> also do
> significant damage to the constitutional balance established by
> the Founders
> because they made clear in the Federalist Papers the importance of
> action by
> a simple majority.  Regarding the importance of majority rule
> generally,Madison stated in Federalist Paper No. 10 that "[i]f a
> faction consists of
> less than a majority, relief is supplied by the republican
> principle, which
> enables the majority to defeat its sinister views by regular vote."
> Hamilton also stated in Federalist Paper No. 22 that "the
> fundamental maxim
> of republican government ... requires that the sense of the
> majority should
> prevail."  As Hamilton explained "To give a minority a negative
> upon the
> majority (which is always the case where more than a majority is
> requisiteto a decision) is in its tendency to subject the sense of
> the greater number
> to that of the lesser number ... The necessity of unanimity in public
> bodies, or something approaching towards it, has been founded upon a
> supposition that it would contribute to security.  But its real
> operation is
> to embarrass the administration, to destroy the energy of
> government, and to
> substitute the pleasure, caprice, or artifices of an insignificant,
> turbulent, or corrupt junto, to the regular deliberation and
> decisions of a
> respectable majority."  Both Alexander Hamilton and James Madison
> stressedthat majority rule was particularly important in times of
> crisis.  In
> Federalist Paper No. 22, Hamilton wrote that "In those emergencies
> of a
> nation in which the goodness or badness, the weakness or strength,
> of its
> government is of the greatest importance, there is commonly a
> necessity for
> action.  The public business must in some way or other go forward.
> If a
> pernicious minority can control the opinion of a majority [the
> result would
> be] tedious delays; continual negotiation and intrigue; contemptible
> compromises of the public good ... It is not difficult to discover
> that a
> principle of this kind gives greater scope to ... domestic
> faction, than
> that which permits the sense of the majority to decide."  In
> FederalistPaper No. 58, Madison wrote that "Were the defensive
> privilege [a reference
> to the influence of minorities under super-majority requirements]
> limited to
> particular cases, an interested minority might take advantage of
> it to
> screen themselves from equitable sacrifices to the general weal,
> or, in
> particular emergencies, to extort unreasonable indulgences."
>
> -----Original Message-----
> From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
> Sent: Friday, March 22, 2002 1:09 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: senate committee rejection of judicial candidates
>
>
> On Representative Chabot's interpretation of the Constitution,
> does it
> violate the Constitution for the Senate to have a rule barring floor
> consideration of a nomination that has not been the subject of a
> committee hearing?  To have a practice (not, as I understand it,
> embodied in a rule adopted by the Senate as a whole) allowing a single
> Senator to place a hold on a nomination?  And, not so
> incidentally, is
> it a constitutional problem for the Senate to have rules to this
> effectif a majority of the Senate can, on any occasion whatever,
> displace the
> rule and bring a nomination to the floor notwithstanding any
> preexistingrules?  Or, to put it another way, where were these
> defenders of the
> Constitution when the Senate was organized by the Republicans?
>
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