Filibusters and the Constitution

The current "wrangling" in the Senate over President George W. Bush’s judicial nominations "has constitutional dimensions, raising important questions about the Senate’s role in the judicial confirmation process under the Advice and Consent Clause," according to a new white paper authored by four attorneys, including the Center for Individual Freedom’s Assistant General Counsel, Reid Alan Cox, and published by the Federalist Society for Law and Public Policy Studies.

The four authors note that, "[b]ecause filibusters of judicial nominees have never been part of Senate tradition until now, the familiar guideposts of historical practice do not offer much direction in pointing the way out of the current judicial confirmation crisis." However, "[a]s a determined Senate minority continues to obstruct up-or-down votes on several nominees while still others languish for months under the threat of even more filibusters, … the constitutional questions raised by this unprecedented state of affairs only become more pressing."

The white paper concludes that "judicial filibusters pose a unique threat both to the separation of powers and to the independence of the federal judiciary" both "by intruding upon the power vested in the President to nominate and appoint federal judges, and upon the power of the Senate majority to consent to the President’s nominees." In addition, the authors explain that "should the Senate decide on its own initiative to repeal the offending use of the filibuster rule, … an even stronger argument could be made that any attempt to use the filibuster to entrench the filibuster itself would be unconstitutional."

To download a copy of the white paper, click here.

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