Separation of Powers and the Filibuster

I go back and forth on what I think about the propriety of the filibuster for legislative purposes, although I’m inclined towards the view that the filibuster is on the whole a good thing under those circumstances.

The announcement by Sen. Ben Nelson that he would not only oppose but filibuster Obama’s nominee for the National Labor Relations Board, however, provides an opportunity to discuss an area where I think the filibuster is not only inappropriate but also undermines the spirit, though perhaps not the letter, of the Constitution.

In circumstances such as executive and judicial nominations, the filibuster is to my mind utterly inappropriate and even outright toxic.  The power to nominate and appoint federal executive and judicial officers is Constitutionally vested in the President under Article II, although certain appointments are to be made with the “advice and consent” of the Senate. 

That this power should rest primarily with the President makes much sense, as well.  As Hamilton wrote in Federalist 76:

I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.

Indeed, the Founders specifically contemplated that “advice and consent” would only require a majority, rather than a super-majority, from the Senate.  Hamilton again:

A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance.

(Emphasis added).

The proposition that a supermajority is not be required finds further support in the fact that the Constitution does not require approval of a nomination from both houses of Congress, but rather only the supposedly more deliberate and less-subject-to-mob-rule Senate.  Imposition of a super-majority requirement on appointments in the Senate undermines this spirit.

Indeed, the problems of a super-majority requirement for nominations become even more apparent when you consider its effects.  Despite our system’s use of “checks and balances,” there can be little dispute as to the primary Constitutional role of each branch.  The Executive is responsible for the execution of laws that Congress has passed; the judiciary is charged with deciding “cases and controversies”; and the Congress is charged with legislation.

However, the Executive cannot competently perform its duties if the Senate refuses to confirm a sufficient number of officers to do so.  Nor can the judiciary competently perform its duties if it lacks a sufficient number of judges to handle the cases and controversies that come before it.  The purpose of requiring the Senate’s advice and consent is to place a “check” on the Executive’s authority, to act as a safeguard against excessive cronyism or appointments “from a view to popularity,” in Hamilton’s words.  It is explicitly not intended to permit the Senate to act as a complete block to the President’s ability to “produce a good administration,” to say nothing about the ability of a single Senator to so act.

Yet this is precisely what has happened over the last number of years.  It is not enough that the minority party oppose a particular nomination for ideological reasons, which I think is perfectly fair and acceptable.  The minority party instead also finds it appropriate to deploy the filibuster for such nominations.  The result?  Over 100 judicial vacancies in federal courts, including over 80 at the District Court level.  This amounts to approximately 1/8 of the judiciary.

And the problem is getting worse despite the huge majority the Democrats enjoyed in the Senate over the last year – during the previous Congress, there were only slightly more than half that number of vacancies, though still far too many.  Moreover, over 177 of President Obama’s nominations remained unconfirmed as of last month, thanks to a combination of threatened filibusters and, especially, holds.  By comparison, at a similar point in the Bush Administration, there were 70 nominees still awaiting appointment, which was itself far too many.

In principle, I don’t think there is much wrong with the Senate adopting rules, such as the filibuster, that have the effect of making legislation more difficult to pass.  Those rules restrain only the Senate’s performance of its own constitutional duties.   But when those rules are used in situations where they impede the ability of coequal branches to perform their Constitutional duties, in the process appropriating power beyond  the limited “checks” the Constitution provides the Senate over such nominations, the filibuster directly undermines the Constitution.

Truth be told, the Republicans were absolutely right to seek the “nuclear option” in 2005 over the issue of Democratic opposition to Bush judicial appointments.  If anything, the “nuclear option” would not have gone far enough since it did not address the issue of legislative holds.  I have still not forgiven the Democrats for their behavior in that instance.  By the same token, however, two wrongs don’t make a right, and the behavior of Senators using or threatening the filibuster and/or holds to block appointments appropriates power to themselves to which they are not entitled under the spirit of the Constitution.

None of this is to comment on the reasons for individual Senator to oppose a particular nomination – a Senator should be free to determine his or her own criteria for doing so.  Instead, this is only to say that the Senate should not be able to undermine the ability of coequal branches of government to carry out their Constitutional functions by way of an internal procedural rule that is not only extraconstitutional but also doesn’t even carry the authority of a duly enacted law.