Lawsuit Against Senate Filibuster of Judges Defended

By Jeff Johnson | July 7, 2008 | 8:31 PM EDT

( - On a day when Washington, D.C., was abuzz over the indictment of vice presidential aide Scooter Libby, a public interest law firm was in federal court Friday defending its lawsuit against the U.S. Senate over the use of judicial filibusters.

Following several successful filibusters by Senate Democrats against President Bush's conservative judicial nominees, the Washington firm Judicial Watch filed suit, alleging that the efforts to block votes for the judicial nominees were unconstitutional. The suit asks the U.S. Circuit Court of Appeals for the District of Columbia to prohibit senators from invoking the parliamentary maneuver in cases of judicial nominations.

"The rules are flagrantly unconstitutional," said Tom Fitton, president of Judicial Watch, after attorneys concluded their oral arguments. "The Senate, as a whole, is defending its case in court and telling the court it has, essentially, no purview over the filibuster rule and to stay out of it," Fitton continued. "We just don't think that should hold up."

The Democrats used the threat of a filibuster -- unlimited debate that can only be stopped by a vote of 60 senators -- to convince the Senate's Republican leadership not to call for votes on the challenged nominees.

"The Constitution specifically provides for those instances where a 'supermajority' would be required, and the 'advice and consent' clause is not one of them," Fitton argued.

The "advice and consent" clause to which Fitton referred is found in Article Two Section Two Clause Two of the Constitution:

"... he (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law..."

Part of the argument against the filibuster of nominees is contained in the subsection immediately prior to the "advice and consent" clause:

"He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate ..."

In the same sentence, critics of the filibuster argue, the Founding Fathers called for a "supermajority" to make treaties, but separated nominations from that requirement.

"Reading the Constitution shows that a simple majority has to be the standard here," Fitton concluded.

The Constitution lists seven sets of circumstances under which an action by the House or Senate either can be taken with less than a simple majority vote, or requires a greater than 50 percent plus one vote majority.
    Senate conviction of an impeached official, two thirds vote;
    Expelling a member of Congress, two thirds vote;
    Calling for a recorded vote, one fifth of the members present;
    Overriding a presidential veto; two thirds of both houses;
    Breaking a tie in the Electoral College, two thirds of the states must be represented
    Approval of treaties, two thirds of the Senators present; and
    Proposing and ratifying constitutional amendments, two thirds of both houses of Congress or of the states' legislatures to call a constitutional convention, three fourths of the states' legislatures or of the states' conventions to ratify.
"In terms of the constitutional issue, it's relatively straightforward," Fitton said. "The arguments are the traditional arguments back and forth and we're on the side that [the filibuster of judicial nominees] is unconstitutional.

The Office of Legal Counsel for the U.S. Senate told Cybercast News Service that it is not allowed to comment on the cases it argues on behalf of the Senate. Senate Majority Leader Bill Frist (R-Tenn.), speaking in April said voting on judicial nominees is one of each senator's "constitutional responsibilities.

"I don't think it's radical to ask senators to vote. I don't think it's radical to expect senators to fulfill their constitutional responsibilities," Frist said. "Either [senators should] confirm the nominees or reject them, but don't leave them hanging."

Despite that belief, Frist authorized the Office of Legal Counsel to defend against the Judicial Watch lawsuit.

Democrats used the filibuster to block ten of President Bush's judicial nominees during his first term. When Harriet Miers withdrew her nomination to replace Justice Sandra Day O'Connor on the Supreme Court Thursday, talk of a filibuster was revived on Capitol Hill. It would most likely come about if the president nominated a known conservative, who has not been confirmed by the Senate in the past, to replace O'Connor.

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