Consent or not

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Now that the Democrats in the Senate have accepted the New York Times' invitation to filibuster the nomination of Priscilla Owen to the 5th Circuit Court of Appeals, one can only hope that at least a few of those Democrats will awaken to the constitutional implications of what they are doing.

While warning that "the filibuster is not a tool to be used lightly," the Times has argued that the filibuster of Justice Owen's nomination, along with that of D.C. Circuit nominee Miguel Estrada, is an appropriate way to tell the president that he "must stop packing the courts with ideologues" and "must show more respect for the Senate's role."While the political logic of these arguments is clear, neither survives constitutional principle.

The effect of a filibuster is to prevent the Senate from taking a vote. But what is better than a majority vote in a democratic institution to determine whether a particular nominee is an "ideologue" (which presumably means out of the mainstream)? If the people President Bush has nominated to the federal bench are extremists, they will not pass muster in an up or down vote. If they do pass muster, it is difficult to claim they are extremists.

As for respecting the Senate's role, where is the disrespect? The Senate's role is to provide "advice and consent." There can be no doubt that the president is getting plenty of advice from members of the Senate, each of whom has communicated his or her list of favorites to the White House. And there is nothing the president has done, or could do, to prevent the Senate from consenting, or not consenting. Indeed, all the president is asking the Senate to do is vote.

Because the Constitution grants the Senate power to make its own rules, and because the Supreme Court has always deferred to those rules, even where other constitutional interests may be affected, there is little chance a federal court will question the Senate's use of the filibuster to defeat judicial nominations. But there are principles of constitutional significance that senators sworn to uphold the Constitution should consider before continuing the filibuster of judicial nominations.

Although the Constitution nowhere specifies that a simple majority is to govern in the Congress, the implication of such intent is clear. A two-thirds majority is required to override a veto and to propose a constitutional amendment, clearly implying that a lesser majority is to govern on ordinary legislative business.One might argue that by Senate rule a lesser majority could be set at 60 percent (the vote required to end a filibuster), but another constitutional provision makes clear that a simple majority is intended. Article I, Section 3 provides that the vice president, serving as president of the Senate, shall have no vote "unless they be equally divided." This provision makes sense only if simple majority decides the matter, unless otherwise specified.

Does this suggest that every filibuster ought to be viewed by the Senate as contrary to the Constitution, notwithstanding that the Supreme Court is unlikely to consider such a claim? Long tradition suggests not. But there is something different about the ongoing filibuster of the Estrada and now Owen nominations.

Traditionally, a filibuster brought the business of the Senate to a standstill. No other matters could be considered until a filibuster was either abandoned or a cloture vote was successful.This assured that the minority position represented by the filibuster was strongly held in the face of the full pressures of democratic give and take. But in the Estrada case, we have what Sen. Robert Byrd calls the "casual, gentlemanly, good-guy filibuster." This new 21st-century filibuster comes at no cost. No endless speeches through the night. No sacrifice of other legislative priorities. Just an understanding that if the Estrada or Owen nominations are brought to the floor, the well-rested filibusterers will swing into action. There is no real difference between this kind of filibuster and having a rule requiring a 60 percent majority on a vote clearly intended to require only a simple majority.

This cost-free filibustering is not likely to be invalidated by the Supreme Court, but it is surely unconstitutional in principle. Every member of the Senate should reflect on their having taken an oath to uphold the Constitution, a central principle of which is majority rule. The Senate's role at this point is to consent, or not. It takes only 51 votes to keep the federal courts free of ideologues.

James L. Huffman is dean and Erskine Wood Sr. professor of law at Lewis & Clark Law School.