Frivolous Suits and Judicial Activism From The Political Right?

Posted June 3, 2003 at 2:44pm

Frivolous lawsuits? Judicial activism? Conservatives supposedly oppose both — but you wouldn’t know it from a conservative group’s recent lawsuit, asking a federal judge to order the Senate to vote on controversial judicial nominations. GOP Senators ought to distance themselves from this flawed idea, and drop any other plans to run roughshod over the Senate’s filibuster rules to win judicial confirmations.

The conservatives’ theory seems to be this: Because, under Article II of the Constitution, nominations require only a simple majority to be confirmed, Senate rules requiring a super-majority to end debate are at odds with the Constitution. Thus, any Senate rule that prohibits the majority from winning confirmation of its nominee is invalid. And therefore, a court ought to order an “up or down” vote on any “stalled” nomination.

Wrong, wrong and wrong.

First, Article II says nothing about a “majority of Senators” having the power to confirm a nominee. Instead, the Framers made it clear that power rests with “the Senate” — the body, not the Members — and that body can act only within its rules. One of those rules is Rule 22.2, which requires a super-majority to end debate.

But another is Rule 31.5, which returns nominations to the president when the Senate recesses for 30 days; and Rule 31.1, which bans votes on nominees on the same day they are reported out by a committee.

Any of these Rules can work to keep a majority from getting its nominee confirmed at a given time: If the filibuster rule is unconstitutional, aren’t the other rules also invalid? Do conservatives plan to go to court and get an injunction against the August recess, if that is preventing them from getting their nominees confirmed? Where does it end?

Second, the power of the Senate to establish these Rules — including the cloture rule — comes from the Constitution itself. Article I, Section 5 provides that the House and the Senate “may determine the Rules of its Proceedings,” of which Rule 22.2, requiring a three-fifths vote to end debate, is clearly one. Thus, far from being at odds with the Constitution in adopting Rule 22.2, the Senate was acting within its power under the Constitution.

And third, any judge examining this sort of lawsuit should easily determine that it falls within the category of a “political question,” and toss it out of court. A judge who acts otherwise would be a “judicial activist” … the kind of judge Republican conservatives have regularly berated … until now, at least.

Filibusters of judicial nominees do raise some difficult questions, and should be used only as a last resort: Democrats in the Senate must be mindful of the fact that, someday, a Democrat in the White House will reap whatever is sown now.

Doubtlessly, that is why they have filibustered so few Bush nominees — just two — while permitting more than 120 others to go all the way to confirmation. In 28 months, President Bush has replaced almost one in seven life-tenured federal judges; by the end of this term, it will be close to one in four. Confrontation has gotten headlines, but cooperation has been the norm.

And even the very few filibusters that the Democrats have launched may be otherwise resolved. As a supporter of Miguel Estrada’s confirmation, I want to see the filibuster of his nomination ended. But the way to do that is not by lawsuit, but through bipartisan accommodation of Senate Democrats’ request to see Estrada’s memos from his days in the Clinton administration’s Justice Department. The White House should allow limited access to some memos; the Democrats should end their filibuster; and Estrada — a thoughtful, independent-minded lawyer — should be confirmed.

What is really at stake here is not the confirmation of a handful of lower court nominations, especially given that Bush is likely to win hundreds of such victories. The legal maneuvering — accompanied by blustery talk of ignoring Senate rules and traditions, and simply imposing (via the chairman) an end to Senatorial filibusters of nominations — are efforts to set the stage for a potential Supreme Court nomination this summer.

If such a vacancy occurs, Bush would be wise to follow the example set by President Bill Clinton in 1994, and find a moderate jurist for our nation’s highest Court. But regardless of whether he does, he president’s nominee should have to pass the same review that every other Supreme Court nominee has had to undergo — including the possibility of a Senatorial filibuster, such as the one that blocked confirmation of President Lyndon Johnson’s nomination of Abe Fortas to be chief justice.

Crafty constitutional theories? Long-shot lawsuits looking for an activist judge? The GOP has criticized such shenanigans for years: It shouldn’t start pursuing them now.

Ron Klain, a partner in the Washington office of O’Melveny & Myers, was chief counsel of the Senate Judiciary Committee from 1989 to 1992 and the associate White House counsel in charge of judicial nominations from 1993 to 1994.