THE MYTH OF THE CONSTITUTIONALLY REQUIRED UP OR DOWN VOTE The True History of Checks and Balances, Advice and Consent in the Senate

THE MYTH OF THE CONSTITUTIONALLY REQUIRED UP OR DOWN VOTE The True History of Checks and Balances, Advice and Consent in the Senate May 2005 To justify a truly unparalleled 1 nuclear option parliamentary maneuver to end filibusters of judicial nominations by breaking the Senate s rules, Senate Majority Leader Bill Frist asserts that Democratic filibusters are unprecedented and that Senators have a constitutional duty to give presidential nominations an up or down vote on the Senate floor. This assertion is squarely refuted by the history of the confirmation process in the Senate. To the contrary, as the examples below illustrate, for over 200 years members of the Senate have used delaying tactics, including the filibuster, to defeat presidential nominations to both the federal judiciary and the executive branch. On many occasions they have been successful. Furthermore, nuclear option proponents themselves, including Senator Frist, have repeatedly used the filibuster to delay nominations, including judicial nominations, and have even successfully defeated nominations through a filibuster and other delaying tactics. Under the Senate's rules there is a right of unlimited debate on any question that comes before the Senate, including a nomination. It takes 60 votes to "invoke cloture," ending unlimited debate and bringing a nomination or other matter to a final vote. It takes 2/3 of the Senators present (as many as 67) to end debate on a change to the Senate's rules. The nuclear option is a proposed parliamentary maneuver under which a simple majority of the Senate (51) would break the Senate's rules to amend the Senate rule that requires sixty Senators to end a filibuster on a nomination. The Text of the Constitution Nowhere in the text of the Constitution is there a requirement for a simple majority for vote on nominations or for a vote at all. What the Constitution does say expressly 2 is that the Senate holds the sole power to make its rules, which certainly must include the rules governing debate on the Senate floor. This interpretation is validated by 216 years of Senate consideration of nominations. Use of the Filibuster Until 1949, when Senate Rule XXII was amended to allow the Senate to invoke cloture on any matter before the Senate, there was no way for the Senate to end extended debate or delaying tactics on a nomination. In the last 32 years of the twentieth century, the Senate leadership was forced to file cloture on at least 34 nominations to end a filibuster on the Senate floor. Among these 34 were 13 judicial nominations, of which 3 people were nominated to be Justices of the U.S. Supreme Court and 8 were individuals nominated to the federal circuit courts of appeals. Twenty-six of the 34 filibusters, approximately three-quarters, were led by Republican Senators. 1 PFAWF Memorandum: No Defense For the Nuclear Option: Response to the Harvard Journal of Law and Public Policy Article, March 16, 2005. 2 U.S. Constitution, Article 1, section 5. 2000 M Street, NW Suite 400 Washington, DC 20036 Telephone 202.467.4999 Fax 202.293.2672 E-mail pfaw@pfaw.org Web site http://www.pfaw.org

Among those, Abe Fortas, nominated in 1968 to be a Chief Justice of the U.S. Supreme Court, was denied a final up or down vote by a Republican-led filibuster which the Senate failed to stop on a vote to invoke cloture of 45-43. While the vote indicates that a majority of the Senate supported a final vote, 3 because of primarily Republican obstructionism a final up or down vote did not occur. Senator Howard Baker Jr. (R-TN) argued during the debate, in defense of the filibuster of Fortas by a Senate minority, that "On any issue the majority at any given moment is not always right." 4 Similarly, the nomination of Henry Foster to be Surgeon General of the United States was killed by a successful Republican filibuster in 1995, as was the nomination of Sam Brown to be a U.S. Ambassador in 1994. On both of these votes a clear majority of the Senate supported the nominations. The exact same advice and consent clause in the Constitution applies to both judicial and executive branch nominations. 5 3 PFAW memorandum: The Fortas Filibuster, July 29, 2003. 4 Charles Babbington, Filibuster Precedent? Democrats Point to '68 and Fortas; But GOP Senators Cite Differences in Current Effort to Bar Votes on Judges, The Washington Post, March 18, 2005, A03. 5 U.S. Constitution, Article II, Section 2. "And he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States[.]" Therefore, despite the claims of nuclear option proponents, filibusters of executive and judicial nominees are of equal constitutional validity. 2

Current proponents of the nuclear option supported several of these filibusters. For example, Senator Frist supported a filibuster against U.S. Circuit Court of Appeals nominee Richard Paez in 2000. In fact Senate Republicans including Senators Frist, Lott, and McConnell were so adamant in trying to block a final vote on Paez that they forced the Senate to vote on an extremely rare motion to postpone the nomination indefinitely after cloture had been invoked. 6 Some current nuclear option proponents have been among the most frequent Republican filibusterers of nominations. Senators Lott, Hatch and McConnell all voted against cloture (to continue a filibuster) on 11 nominations during the first three years of the Clinton Administration, including on two occasions where filibusters defeated nominees with majority support in the Senate. 7 Former Senate Majority Leader Trent Lott on at least one occasion even prevented a cloture motion from being filed on a nomination. In 1998 President Clinton nominated James Hormel to be the U.S. Ambassador to Luxembourg. Despite an overwhelming bipartisan vote of approval in committee (16-2), 8 Lott simply refused to bring the nomination to the floor despite clear evidence that at least 60 senators would have voted to confirm the nomination had there been an up or down vote. 9 Use of Delay and Other Tactics to Deny an Up or Down Vote 10 The filibuster is only one of many tactics that have been employed in the Senate over a period of over 200 years to deny a nominee an up or down vote. In some cases, nominations were rejected when the Senate committee to which they were referred blocked the nomination from going to the Senate floor. In other cases, individual Senators or groups of Senators blocked the Senate from taking action even after the nomination was reported to the full Senate. Such tactics date back to the very beginning of our Republic. During the administration of President John Adams, at least 9 of his nominations were postponed indefinitely from 1797-1801 and died through inaction of the Senate. 11 During the Monroe administration, the Senate failed to act on so many of his nominations that his successor to the Presidency, John Quincy Adams, felt honor bound to renominat[e] every person nominated by Mr. Monroe, and upon whose nomination the Senate had declined acting. 12 6 Senate Vote 39, 106 th Congress 2 nd Session, March 9 2000. 7 The nominations filibustered were Walter Dellinger, Janet Napolitano, Sam Brown, Derek Shearer, Ricki Tigert, Henry Foster, and five State Department nominations considered en bloc. The nominations of Sam Brown to be a U.S. Ambassador and Henry Foster to be U.S. Surgeon General were defeated by the filibusters. 8 Paul Bedard, Hormel Appointment Appears Dead Lott Expected to Refuse Roll to Call Vote, The Washington Times, July 1, 1998, A6. 9 Id. 10 Some, like the authors of the Harvard Journal of Law and Public Policy article frequently cited by proponents of the nuclear option, expressly include in their definition of a filibuster placing a hold on a bill or nomination, [and] refusing to report a bill or nomination out of Committee. Martin B. Gold, Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster, Harvard Journal of Law and Public Policy, Volume 28, Issue 1 (2004) Under that definition, many of the instances of delay and other tactics discussed below would be defined as a filibuster. Regardless of whether such tactics constitute a filibuster, they obviously result in denying a nominee an up or down vote on the -floor of the Senate the very constitutional duty which nuclear proponents claim binds the Senate. 11 George H. Haynes, The Senate of the United States Its History and Practice, 1938, p. 753 footnote 1. 12 Id at 735 (Quoting John Quincy Adams). 3

At times rejection by inaction has been far more common than rejection by up or down vote. One study of the Senate's exercise of the advice and consent power found that during a twenty year period from 1929-1948, the Senate rejected 15,263 presidential nominations through inaction. In the same period only 84 nominations were rejected by straight up or down votes. 13 Such large numbers rejected without a vote are not an aberration. In 1917, roughly 2000 of President Wilson's nominations were blocked through the end of the session due to senatorial unrest over his nomination of his personal physician (Dr. Cary Grayson) to be a Rear Admiral. 14 Rejection by failure to take a final vote has frequently defeated judicial nominations and executive branch nominations. For example, in 1828, the Senate Committee tasked with considering judicial nominations on at least one occasion expressly found that it was within the authority of the Senate to decide that it was inexpedient to advise and consent to the nomination now and to therefore take no action, killing the nomination after the Senate adjourned. 15 Deliberately denying a Supreme Court nominee an up or down vote in the Senate appears to be particularly common. Of 24 nominations to the U.S. Supreme Court whom the Senate did not confirm between 1789 and 2002, 14 (nearly 60%) were defeated through inaction or delay. 16 These 14 defeated without an up or down vote represent nearly 10 percent of all the Supreme Court nominations made in our nation s history. 17 As one scholar of the Senate wrote in 1938, The Senate, on its part has often taken no action upon [a nomination], or, after long delay, has voted to postpone its consideration indefinitely. At least ten nominations to the Supreme Court have been blocked in this way. 18 Such was the fate of Andrew Jackson Supreme Court nominee Roger Taney on President Jackson s first attempt to nominate him. The Senate held up the nomination for six weeks and then voted to indefinitely postpone a final confirmation vote. Reportedly, when President Jackson heard the news, well after midnight, that the Senate had defeated his nominee by inaction he referred to the body as damned scoundrels. 19 Taney was later renominated and confirmed as Chief Justice. Other 19 th century examples include President John Tyler s nominations of Judge Edward King and Reuben Walworth to the bench which were blocked in the Senate for over a year until he finally withdrew them. After he submitted two new names for the bench (John Meredith Read and Samuel Nelson), the Senate confirmed Nelson but refused to take final action on Read. 20 President Millard Fillmore nominated three individuals during the 1850s, Edward Bradford, George Badger, and William Micou, for the same seat on the Supreme Court. The Senate failed to confirm all three without taking a final up or down vote to confirm or reject. In the case of Badger, the Senate 13 Joseph P. Harris, Advice and Consent of the Senate, 1968, p. 248 14 Haynes, supra, at 768. 15 Id., at 739. 16 Henry B. Hogue, Supreme Court Nominations Not Confirmed, 1789-2002, CRS Report for Congress July 9, 2003. 17 Senate Historical Office. Document found at http://www.senate.gov/reference/resources/pdf/supremecourtnominations.pdf 18 Haynes, at 770 (emphasis added). Note that the reference to 10 defeated by inaction was through 1938. 19 Id. 20 Harris, at 68. 4

formally postponed his nomination until the end of the session, effectively rejecting the nomination. 21 Delay and other tactics as the preferred means of defeating judicial nominations without any vote was revived with a vengeance in the late 20th century when the Senate came under Republican control. From 1995 to 2000, over 60 of President Clinton's judicial nominees were blocked in the Senate, sometimes by the action of only one Senator, and were rejected without an up or down vote. 22 Over that period, none of President Clinton s appellate court nominees were rejected by the Senate through up or down votes. Every appeals court nominee not confirmed was defeated by inaction or obstruction including 16 in the 106 th Congress alone 56 percent of such nominations. 23 Conclusion Senator Frist is justifying a parliamentary maneuver that has never been done with a history of a United States Senate that never occurred. For at least 208 years, nearly as long as there has been a United States Senate, there have been documented examples of presidential nominations rejected by the Senate without a final up or down vote through delay, inaction, and parliamentary tactics including the filibuster. This history demonstrates conclusively what is clear from the text of the U.S. Constitution: there is no requirement for the Senate to vote on a Presidential nomination. Indeed, it does not require the Senate to take any action on a nomination at all. The history of the confirmation process in the Senate also illustrates one other central fact: Presidents have had the most success with their nominations when they have viewed the entire Senate as a partner in the nominations process, not an adversary. This suggests that the better way out of the current stalemate, and the best way to preserve our fair and independent judiciary, is not tyranny of the majority in the Senate. Rather, it is genuine bipartisan cooperation and consultation with Senators on both sides of the aisle For 200 years, the right of unlimited debate in the Senate has been a tool of moderation and compromise. The Senate was designed to be the more deliberative body in Congress. The current situation with one party dominating the White House and Congress in spite of a narrowly divided national electorate demonstrates the wisdom of our constitutional framework s checks and balances. The nuclear option not only represents a clear abuse of power; by eliminating the filibuster for judicial nominations it would also change the nature of the Senate and its role in our constitutional system. 21 Id., at 70. 22 Statement of Senator Patrick Leahy, November 143, 2003. Found at http://leahy.senate.gov/press/200311/111303b.html. 23 PFAWF Report: President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution, October, 2001. 5