Academic journal article Harvard Journal of Law & Public Policy

Our Broken Judicial Confirmation Process and the Need for Filibuster Reform

Academic journal article Harvard Journal of Law & Public Policy

Our Broken Judicial Confirmation Process and the Need for Filibuster Reform

Article excerpt

To vote without debating is perilous, but to debate and never vote is imbecile.

--Senator Henry Cabot Lodge (1)

Filibustering originally referred to mercenary warfare intended to destabilize a government.

--Catherine Fisk & Erwin Chemerinsky (2)

The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.

The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be so altered that it can act.

--President Woodrow Wilson (3)

Now is the perfect moment ... to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

--The New York Times (4)


On May 9, 2001, President George W. Bush nominated distinguished Washington attorney Miguel Estrada, Justice Priscilla Owen of the Texas Supreme Court, and nine other talented jurists to serve on the prestigious federal courts of appeals. (5) Senator Patrick Leahy, then and now the ranking Democrat on the Senate Judiciary Committee, attended the President's East Room ceremony announcing these nominees, and said afterward: "Had I not been encouraged, I would not have been here today.... I know them well enough that I would assume they'll go through all right." (6) Senator Leahy announced that "[w]e will submit [the nominees] to the [American Bar Association], so there could be peer review," (7) and the ABA responded by giving both Estrada and Owen its highest possible rating: unanimous well-qualified. (8)

Yet today, well over two years later, Estrada and Owen have not--to use Senator Leahy's words--"go[ne] through all right." (9) Quite the contrary: Although both Estrada and Owen enjoy the support of an enthusiastic bipartisan majority of Senators who have long been ready to schedule a vote to confirm them, to date neither has received an up-or-down vote on the floor of the United States Senate. Instead, a partisan minority of Senators has launched unprecedented filibusters to block their confirmation by preventing the Senate from even calling an up-or-down vote on their nominations. Those same tactics are now being used against Alabama Attorney General Bill Pryor, Mississippi federal judge Charles Pickering, California Supreme Court Justice Janice Rogers Brown, and California Superior Court Judge Carolyn Kuhl, and it is feared that others will meet the same fate when their nominations arrive on the Senate floor. (10) An historic and tragic step was taken when Estrada declared that enough is enough and asked President Bush to withdraw his nomination--the first judicial nominee in the history of our nation to be denied confirmation despite enjoying the support of a majority of the Senate. (11)

The judicial confirmation process is badly broken. I am certainly not alone in that view. Earlier this year, all ten freshman Senators declared, in a letter to Senate leadership, that "the judicial confirmation process is broken and needs to be fixed," and that "the United States Senate needs a fresh start." (12) And veteran senators from both parties have expressed similar sentiments. Senator Chuck Schumer of New York has written, for example, that "the judicial nomination and confirmation process [i]s broken and ... we have a duty to repair it." (13) Senator Dianne Feinstein of California has likewise concluded that the judicial selection process "is going in the wrong direction. The debate between the Senate and the Executive Branch over judicial candidates has become polarized and increasingly bitter." (14)

Outside observers of the Senate judicial confirmation crisis have come to the same conclusion. ABA President Alfred P. Carlton Jr. has concluded that, as the result of the Senate's broken confirmation process, "[t]here is a crisis in our federal judiciary, constituting a clear and present danger to the uniquely American foundation of our tripartite democracy--an independent judiciary. …

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