May 20, 2005

How about a supermajority to reject judicial nominees?

Did you know that the Constitution's Framers considered requiring a supermajority vote in the Senate to reject the President's judicial nominees?
Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

Today, under the filibuster, the idea is that a minority of Senators can defeat the President's nominee, but Madison's idea at one point was that it should take 2/3 of the Senators to reject the nomination.

UPDATE: Betsy Newmark takes this post as a prompt to read through the whole debate on the subject of judicial appointments (and to make her own observations). Really, I recommend reading through the original debates when these questions come up. It is very easy, at the Founders' Constitution website to click on individual clauses of the Constitution and get to the relevant historical materials. It's often quite striking how different these are from the things people are saying about them.

41 comments:

Matt said...

You want (what, as far as I know is) a comprehensive summary of the convention debates. Here you go.

Smilin' Jack said...

"How about a supermajority to reject judicial nominees?"

What difference does it make? We have a government of laws, not of men! Errr...don't we?

Jeff in NY said...

I think this quote is even more enlightening

"Mr. Madison moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch."

It seems obvious that Madison envisioned the Congresses roll not as a vetting system with long debates on the qualifications of the nominee but more of a last gasp preventative measure to a naked power grab by the Executive.

Surely a list of acceptable nominees for the President to choose from (As is being floated by Byrd and Warner) was not envisioned.

Ann Althouse said...

Matt: That's a PDF file of a law student note reviewing the convention history and so forth. I'd MUCH rather read the original convention notes than a paraphrasing of them.

Sloanasaurus said...

The filibuster is a tradition in the Senate. It remains a tradition because it is rarely used. In fact, part of the filibuster tradition is that it is rarely used. Filibustering seven circuit appeals nominees is clear abuse of the tradition. In a sense, once the filibustering occurred the tradition was scuttled. We can cartinaly argue over who crossed the Rubicon first. It doesn't matter. Either way, there will no longer be a filibuster tradition regarding judicial nominations in the U.S. Senate.

Matt said...

Indeed it is (and it happens to be my note). Certainly, the convention records are important (hence, my extensive citation and quotation from them), but they're exceedingly disparate, and what I tried to do is connect everything together rather than reading them in diaspora, and draw conclusions from them.

Ann Althouse said...

Matt: At Founders' Constitution, the site I link to, the historical materials are collected for each constitutional clause, so it's not hard to read everything. I dislike reading paraphrases in part because everyone is always trying to use these materials to get where they already want to do.

Timothy K. Morris said...

The thing I find just amazing is that the filibuster that is blocking Bush's nominees is a filibuster in name only. It seems that the Senate removed the requirement that a Senator be on his/her feet, talking, a la Mister Smith Goes To Washington, in favor of a mere announcement by 41 Senators that that's their intent and the matter is never even brought to the floor for a vote unless 60 Senators vote to close "debate." The ultimate victory of form over substance.

Blogosapien said...

If you follow the thread of the discussion Madison & the others had on the issue of "advice & consent" by the senate, it is so totally clear that they only were concerned with having a 2/3 vote relative to treaties, and not with regard to judicial appointments. If the Senate really had respect for its own origins and its own traditions, they should read the history of the establishment of the "2d branch" to get a grip. None of the founders involved in hashing this out even brought up the idea of making a 2/3 vote necessary to confirm the Executive's appointments to the courts, and as Ann points out, the only one to mention ANY distribution of votes re judges was that 2/3 should be required to strike down the Executive's appointment.

Ben said...

I'm on your side in this debate (although I would prefer it not come to this showdown), but I must say that I find this revelation interesting, but not particularly enlightening. Using it as an additional argument for doing away with judicial filibusters reminds me of the Democrats who want to use what John Bolton thought of doing (with respect to intelligence data, etc.) as a reason to oppose his nomination.

So Madison made this proposal on judicial nominations, and it was shot down. It's interesting, but ultimately irrelevant.

Paul said...

The convention notes can be used to argue for either side. There's this

[2:121; Madison, 26 July]
...
5. The Judiciary
1. shall consist of one supreme tribunal
2. the judges whereof shall be appointed by the senate

No mention of the executive. Later on they decide it's a bad idea, but the Senate was certainly considered.

DrTony said...

I like the idea of 1/3 to approve and that the appointment is approved within a limited amount of time unless rejected. That would certainly avoid this type of BS.

The Senate already has significant control, by "tradition," of the judicial appointments, anyway. Senators from particular states are consulted regarding judicial appointments in their states.

Ann, what is the deal with a "hold" anyway? The way I've read it, any Senator can perform a 1 person filibuster by placing a hold on a nomination, without any need to state a reason.

Paul said...

The convention notes can be used to argue for either side. There's this

[2:121; Madison, 26 July]
...
5. The Judiciary
1. shall consist of one supreme tribunal
2. the judges whereof shall be appointed by the senate

No mention of the executive. Later on they decide it's a bad idea, but the Senate was certainly considered.

Matt said...

Basically, the bottom line is that there were groups who wanted pure executive appointment and groups who wanted pure Senatorial appointment, and the language in the Constitution was the result of a compromise to allow both branches to play a role. I think Ann's right that the Constitution itself doesn't say anything about the present issue of the fillibuster either way--but it does say that it envisions the Senate involved and not just "rubber stamping" nominations. Hell, folks in the Senate rejected SCOTUS nominations even in the early Republic.

All that said, I think a strong case can be made with the help of Federalist 10 & 51 for the general importance and necessity of a fillibuster or similar method to protect minority rights, at least in some circumstances. (Not coincidentially, that's the place I happen to place myself in this debate.)

JohnF said...

Aren't we forgetting that at the time of the Constitution judges were pretty far down everyone's totem pole in terms of importance? Sort of like the vice presidency is today?

The president would appoint these guys the way he would appoint people to collect customs duties. Their principal jurisdiction was on matters arising under federal statutes and as a safety valve to avoid "home cooking" in state courts.

I think the notion of a large body of federal common law, not to mention the quasi-legislative function the courts have assumed would have astounded these people. Yet it is just those features that have made judicial appointments so sensitive today. Back then, and frankly until fairly recently, the main judicial qualification was some notion of competence, not ideology, since the latter didn't really matter.

JohnF said...

Aren't we forgetting that at the time of the Constitution judges were pretty far down everyone's totem pole in terms of importance? Sort of like the vice presidency is today?

The president would appoint these guys the way he would appoint people to collect customs duties. Their principal jurisdiction was on matters arising under federal statutes and as a safety valve to avoid "home cooking" in state courts.

I think the notion of a large body of federal common law, not to mention the quasi-legislative function the courts have assumed would have astounded these people. Yet it is just those features that have made judicial appointments so sensitive today. Back then, and frankly until fairly recently, the main judicial qualification was some notion of competence, not ideology, since the latter didn't really matter.

Patrick Byrne said...

I don't know what's more instructive, that they considered it or that they rejected it.

deadrody said...

The thing I find interesting about the proposal that a 2/3 vote would be required to reject a judge is in regards to the acrimonious partisanship in evidence today.

Does anyone really think that if a judicial nominee actually DID smack of a "power grab" that in 2005, assuming there was a 2/3 Republican majority, that they would actually NOT vote to confirm ? I have no confidence that would happen at all.

So not only is it irrelevant since the proposal was rejected, but irrelevant to the point that it wouldn't even have the intended result in today's Senate.

Silence Dogood said...

Paul said...

"The convention notes can be used to argue for either side. There's this

[2:121; Madison, 26 July]
...
5. The Judiciary
1. shall consist of one supreme tribunal
2. the judges whereof shall be appointed by the senate

No mention of the executive. Later on they decide it's a bad idea, but the Senate was certainly considered."

If the Senate could pick the judges couldn't we conclude that these seven appointees would already be judges? The debates are fascinating because they reveal the concerns of the framers. Both executive selection and executive selection were distrusted, and for good and prescient reasons, so we ended up with a compromise selection process.

Though I don't think very highly of the Republicans in this mess, a fairminded reading of the debates rather clearly suggests an abuse of power by the Democrats here.

Kathleen B. said...

Senators from particular states are consulted regarding judicial appointments in their states.
... any Senator can perform a 1 person filibuster by placing a hold on a nomination, without any need to state a reason.


these are exactly two of the procedures that Republicans used under Clinton to block his nominees and then have done away with under Bush. Thus, leading to the fillibuster showdownthis week.
I am no apologist for the fillibuster (or the Washington-insider Democratic party elite) but this is EXACTLY the problem we are now faced with. Republicans had tricks to oppose Clinton, and now systematically abandom them. and then cry foul. it is just not right.

Knemon said...

Yes, and Democrats (Byrd being the most blatant, with Leahy not far behind) are now taking a position exactly opposite to their previous on-the-floor remarks.

Both sides are swimming in hypocrisy. There are no heroes here, only hacks.

Gerry said...

Kathleen,

We are now into the third session of Congress under President Bush.

Under Clinton's first session of Congress, the Republicans were in the minority. Of the Circuit Court nominations and Supreme Court nominations he made to this session of Congress, do you know what percentage were eventually confirmed? 100%. (Three had to wait until the next session of Congress, however). Of those originally nominated to his second session of Congress, 82% were eventually confirmed. To his third, 78%. Not much evidence of the Republicans using any of those procedures for blocking many of his nominees, at least until the last two years of his Presidency (and admittedly, then the Republicans tried to run out the clock).

Yes, those procedures were in place and available for Senators back then. The problem with abusing any privelege or courtesy is that it leads to the privelege or courtesy being revoked.

Ann Althouse said...

Ben: Rejected positions are not irrelevant, they just need to be understood for what they are: something that was within the range of things that could be taken seriously but the people who were ultimately making the final decision. Someone supporting the filibuster now and saying the Framers liked checks and would therefore like even more checking could be met with this piece of evidence to show that they thought of leaning in the opposite direction. It's also relevant that they considered putting the appointment of judges in the Senate alone.

Matt: I agree that the Senate shouldn't just be a rubber stamp and the filibuster can serve a good purpose. The question is whether the filibuster has been overplayed to the point where on balance the bad substantially outweighs the good. There's a Senate tradition that's worth something, but the use of the traditional means is changing. At some point there is a breakdown in the procedure and the majority doesn't have to stand powerless forever.

John: You write: "I think the notion of a large body of federal common law, not to mention the quasi-legislative function the courts have assumed would have astounded these people. Yet it is just those features that have made judicial appointments so sensitive today. Back then, and frankly until fairly recently, the main judicial qualification was some notion of competence, not ideology, since the latter didn't really matter."

Yes, this is another thing that has changed so much that we can't just swallow the argument from tradition whole. Some push-back from the minority is a good way to keep the majority from stocking the court with extreme judges. But the willingness to call people extreme right now is so strong and unevenly wielded against women and minorities. I find that intolerable.

Jack said...

The fact that the framers rejected this opinion proves that they didn't want congress to be a rubber stamp for the nominees. Add to that the fact that Madison was in favor of strong central government and you have to wonder how any self-respecting Republican could be in favor of getting rid of the fillibuster.

MaryPat said...

You know, the majority rules in this country, and it ruled back then, too. They talked about the possibility of the Legislature appointing judges, and the issue was VOTED DOWN. Really, their thoughts (which seem even more relevant today) were all summed up in one short paragraph:
"Mr. Wilson opposed the appointmt of Judges by the national Legisl: Experience shewed the impropriety of such appointmts. by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person."

Knemon said...

What does the filibuster have to do with centralized government?

I'm also confused by this "rubber stamp" stuff. 51 votes is rubber-stamping, but 60 votes isn't? Well, the filibuster threshold used to be higher than 60 votes - was it wrong to lower it? Would it be wrong to lower it again, say, to 55?

MaryPat said...
This comment has been removed by a blog administrator.
submandave said...

Adding to the irrelevancy of this considered option are the changes in election of the President and Vice President resulting from the 12th Ammendment and changes in selection of Senators resulting from the 17th Ammendment, both of which have bearing and neither of which were remotely considered by the Framers.

I agree that the tendency to both casually toss the approbation of "right-wing extremist" and to imprudently fillibuster has placed the Democrats on untenable ground. Just as the word "torture" tends to loose meaning when applied to events such as wrapping one in an Isreali flag, the Democrats are increasingly being seen as crying "wolf" when it comes to the matter of justices with extreme positions.

Hyperbole has its place, but when regularly employed as the first choice of expression it tends to lessen the impact of real outrage.

Chris from MI said...

I think it's interesting that the framers didn't trust a legislative body to choose judges because they would reflect their own partialities. They assummed that the president would be more responsible and choose better judges. Mr Bush has proven that theory completely incorrect and done exactly what the framers were trying to avoid. He has chosen incompentent or at least questionable/inappropriate judges. So we are left with a quandary with no good solution.

nicknyc said...

Gerry says:

"The problem with abusing any privelege or courtesy is that it leads to the privelege or courtesy being revoked."

It's exactly that condescending attitude that causes moderate republicans to recoil. This so called Nuclear Option is not without risks for the Senate Leadership. They may try but fail to gather enough votes or they may succeed in amending senate rules and trigger a slowdown in senate business that is layed squarely at their feet come Nov. '06. These folks may find out that Government by Hubris does indeed have it's limits.

Gerry said...

Those last comments were so good, Ann, that I had to blog them.

Gerry said...

Nicknyc,

"They may try but fail to gather enough votes or they may succeed in amending senate rules and trigger a slowdown in senate business that is layed squarely at their feet come Nov. '06. These folks may find out that Government by Hubris does indeed have it's limits."

I absolutely agree, although I would say that in 2002 and 2004, the ones paying the price for their hubris with regards to the judicial nominating process are the Democrats.

I doubt you saw my comment on another post here, but I'll both link to it and give the salient part:

"What strikes me as really phony is the rhetoric about checks and balances, and how they will be destroyed by either outcome. Hogwash! The Senate will hash out politically, what it is going to do. The real checks and balances will come in the subsequent elections. If voters think the Democrats have been abusing their Senatorial roles, the voters can check that by voting them out. Similarly, if voters think that the Republicans are abusing their Senatorial roles if they quash the filibusters, voters will take care of them.

"American voters do not always get the right answer, but they generally do. I have faith in them."

The quote of mine that you found so objectionable is nothing more than an objective observation about the nature of human interactions. When a person or group starts abusing something that previously had not been abused, the rest of the group tends to act to stop the abuse. If one wants to preserve the ability to do something, the best approach is to avoid abusing whatever it is.

It looks like this showdown will be coming to a head next week. I am guessing, though, that it will end up extending much longer; my best guess is that the Democrats will allow cloture on Owen and the battle will continue until the Republicans bring forward someone the Democrats will not retreat on. I'm guessing we'll be at this for months before the trigger is pulled, if it ever is.

But whenever it is, whatever the outcome, in 2006 the voters will render their decision-- do they think that the Democrats were abusing their power by blocking 17 Circuit Court judges (so far)? Or do they think Republicans were abusing their power by enacting measures to overcome the obstruction.

I'll repeat what I quoted above. I have faith in the voters. They generally get the answers right.

Dan said...

While I support your position on the nominees, it should also be noted that the Constitutional Convention considered and approved (before reversing itself) a proposal placing the appointment of judges solely in the hands of the Senate.

It was moved to place the appointment of judges in the hands of the Senate. Mr. Ghorum moved to amend it to follow Massachusetts' practice of "advice and consent". This motion failed 4-4-1. Mr. Madison then made his proposal. Seeking to make it more palatable, he amended to to a majority only. His motion failed 3-6. The original motion passed 6-3.

Of course, later they reversed themselves, returning to Mr. Ghorum's proposal. Exactly why they did this is unclear (perhaps Georgia, which had abstained, or New Hampshire, which showed up late, decided to side with Mr. Ghorum, or perhaps in the course of debate concerning treaties and ambassadors the founders became less enthused about entrusting such matters to the Senate), but it shows that the Constitutional Convention considered a lot of things in the course of its debates.

Free Agency Rules said...

Article II says "Advise and Consent of the Senate", not "Advise and Consent of the Committee", it must get to the Senate floor for that to happen!

.

Kathleen B. said...

Mary Pat - it is interesting that you say that majority rules in this country, becasue the 44 Democratic Senators represent more Americans than the 55 Republicans.

TallDave said...

Great insight from the Founders, thanks for sharing.

TallDave said...

If we send it to Fox News, this little tidbit might even make it onto "The Grapevine." Brit seems to like these kinds of things.

TallDave said...

Kathleen,

That's why we have a House in addition to the Senate.

Ann Althouse said...

But TallDave, the House is no help when it comes to who gets to be federal judges (short of impeachment).

Mark said...

Anybody got a vote count?

Carl said...

I've written a two-part post addressing this issue:

Part 1

Part 2