Pepperdine Law Review

Volume 32 | Issue 4 Article 5

5-15-2005

The Filibuster of Judicial Nominations: Constitutional Crisis or Politics as Usual?  By Arthur Rizer

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Recommended Citation Arthur L. Rizer III The Filibuster of Judicial Nominations: Constitutional Crisis or Politics as Usual?, 32 Pepp. L. Rev. 4 (2005) Available at: http://digitalcommons.pepperdine.edu/plr/vol32/iss4/5

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The Filibuster of Judicial Nominations: Constitutional Crisis or Politics as Usual?

Arthur L. Rizer III*

TABLE OF CONTENTS

I. INTRODUCTION

II. HISTORY OF THE FILIBUSTER

A. The Filibusterin America

1. The Birth of the American Filibuster
2. Filibuster v. Cloture
3. The Filibuster Reaches Adulthood

B. The JudicialNominationProcess

1. Senate’s Committee on the Judiciary
2. The American Bar Association’s Role

III. WHY THE PRACTICE IS UNCONSTITUTIONAL

A. The Advice and Consent Clauseis Non-Discretionary

1. Filibuster of Legislation v. Judicial Nominees

a.

History

b.

Legal Obligation

2. Due Process

B. Separationof Power

1. Usurping the Executive Branch

* LL.M. Candidate, Georgetown University Law Center, Spring 2007; J.D., Gonzaga University School of Law, 2003, magna cum laude; Attorney Advisor, United States Department of Justice, Executive Office of Immigration Review, March 2005 -Present (The views expressed in this article do not necessarily represent the views of the Department of Justice or the United States); Federal Judicial Clerk for the Honorable Edwin M. Kosik, August 2003 -March 2005. I would like to thank my wife, Monique Rizer, and sons, Gabriel and Asher, for their support. In addition, I would like to

thank the editorial staff at the PepperdineLaw Review for their hard work on this paper, specifically Dina Klepner.

2. Usurping the Judicial Branch

a. Log-Jamming

b. Court Packing

3. Presentment and Bicameralism

C. A New Supermajority

1. The True Supermajorities
2. A Simple Reading

D. ConstitutionalAmendment by Proxy

IV.

CLEAN HANDS: THE STENCH OF POLITICS

A. Same Sin, DifferentApple B. Do Unto Othersas Done to You C. The Role of Ideology in the Advice and ConsentStage

V.

CONSTITUTIONAL IMPACT

A. Impact on the Constitution

1. Circumventing with Recess Appointments

B. Impact on the Legislative Process

C. Remedies

1. If You Can’t Beat Them –Sue Them

a.

Standing

b.

PoliticalQuestion

c.

Causes ofAction

2. Change the Rules

a.

Increase the President’sPower

b.

Keep it Simple

VI. CONCLUSION

I. INTRODUCTION

The scene played out in Mr. Smith Goes to Washington’ of the independent and moral-grounded Senator using the filibuster as his “line in the sand” against corruption is a romantic vision. The reality is that there is a darker side to the practice rooted in partisan motives and a disrespect for the rule of law.

It is well established that the founding fathers sought to avoid a “rule by mob” approach to government.² However, is it reasonable to conclude that they wished for a government that was ruled by a discontented minority?

1. MR. SMITH GOES TO WASHINGTON (Columbia/Tristar Studios 1939).

2. See Jolanta Juszkiewicz, Listen, the Public Is Speaking Out on Crime, 61 FED. PROBATION, Sept. 1997, at 82 (noting that “[w]hile expounding the virtues of ‘one man one vote’ the Founding Fathers feared unbridled rule by the masses (translated as mob rule, or rule by unrestrained, uninformed, perhaps even uneducated, majorities)”). After the revolution the Founding Fathers discovered that the people were just “as capable of despotism as any prince .. ” GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787, 410 (1969); see also Christopher

L. Mass, Proposition 103: Too Good to Be True, 12 WHITTIER L. REV. 403, 432 (1991) (“The Founding Fathers were cognizant of the detrimental effects of ‘mob rule’ or direct democracy when they formulated our system of representative government. In other words, the inherent danger with direct democracy or legislation passed by initiative is ‘tyranny of the majority.”‘); Daniel Mark Cohen, Begging the Court’sPardon:Justice Deniedfor the Poorest of the Poor, 14 ST. THOMAS L. REv. 825, 845 (2002).

That is arguably what is happening today in the United States of America’s Senate.

Today, a minority of Senators have engaged in questionably unprecedented filibusters to obstruct the confirmations of President Bush’s judicial nominees, thereby preventing the Senate as a whole from voting on his nominations. The national arena is the stage for this backbiting, illustrated with the recent headlines of an all-night Senate session staged by Republicans as a demonstration against the filibuster over three of the President’s nominations: California Supreme Court Justice Janice Rogers Brown, Texas Supreme Court Justice Priscilla Owen, and California Judge Carolyn Kuhl.³ Another recent filibustered nominee was Miguel Estrada, who in September 2004 asked the President to withdraw him from consideration after his nomination went through seven unsuccessful cloture votes.⁴

In addition, it is important to note that while a record number of President Bush’s nominees have been successfully confirmed, there is nonetheless a constitutional problem. For example, if one person’s civil rights were not honored, one could not legitimately counter by arguing that hundreds of others’ civil rights were not violated –that one person was still harmed. The vast majority of our constitutional law has been developed one case at a time. Thus, by disregarding the constitution, even in a “small amount,” we weaken the document as a whole.

…  Read More: Arthur Rizer, The Filibuster

The Filibuster of Judicial Nominations: Constitutional Crisis or Politics as Usual?  By Arthur Rizer