It is a great honor to participate in the historic hearing of the Senate Rules Committee to consider amending Rule XXII of the United States Senate. I come before the Committee as someone who has dedicated his professional life to the study and analysis of constitutional conflicts between the President and the Congress. I come as well to extend a dialogue, begun in the Constitution Subcommittee of the Senate Judiciary Committee, over the constitutionality of the filibuster and the proper means for amending Senate Rule XXII. I come, most importantly, to respectfully urge the Rules Committee to stand by its practice, never broken before, to amend its rules in accordance with its rules. At stake is not only the filibuster as it has been understood for most of American history but also the uniqueness and integrity of the United States Senate. For the Committee is being urged to adopt a constitutional argument of mandatory majority rule in the Senate whose implications are mind-boggling; they include not only scrapping the filibuster but overturning and re-conceptualizing every practice, rule, and tradition of the Senate that has allowed an individual senator and committee to take some counter-majoritarian action. In being asked to abide by an unusual, heretofore never adopted argument that the Constitution not only protects but requires majority rule in the Senate, the Senate is effectively being asked to end practices that every senator who has ever served in the Senate has relied upon or exercised, including senatorial courtesy, the discretion of committee chairs to schedule committee hearings and votes, and the usual practice of requiring unanimous consent to bring a judicial or executive nomination to a vote on the floor of the Senate.

Since you have access to my prior statements given in the Constitution Subcommittee on the important questions before this Committee, I will not repeat them all here. Instead, I intend in this written statement to sketch some basic arguments to defend the rules and practices at stake in today's hearing, to expose problems with the constitutional arguments supporting both mandatory majority rule in the Senate and the notion of anti-entrenchment, and to review the options before the Committee. In my appearance before the Rules Committee, I hope to expand these arguments; and I hope to amplify them further in a supplemental statement once I have had the opportunity to listen to senators' questions and concerns at the hearing. Throughout, my intention is to be of assistance to the Committee, and hope no member will hesitate to let me know how I can be of assistance in addressing the extraordinarily important questions before the Committee.

The arguments supporting the constitutionality of the filibuster can be succinctly stated. Article I, Section 5 expressly provides, "Each House may determine the Rules of its Proceedings." Article I, Section 5 plainly authorizes the Senate to make procedural rules. It empowers the Senate as well to delegate what is sometimes final authority over the fates of legislation, treaties, and nominations to committees and their chairs. The textual authority for the filibuster is precisely the same as those for these other measures. If these measures are constitutional, then so too is the filibuster.

The Supreme Court has repeatedly emphasized the relevance of historical practices for determining constitutionality. In the United States, the filibuster, understood as protracted debate or delay impeding final Senate consideration of a legislative matter, began in 1790 and has been maintained, in one form or another, ever since. Over the past 200 years, it has been used frequently by senators from both parties against nominations as well as legislation. For instance, among the nominations defeated by protracted debate or dilatory tactics are eight Supreme Court nominations in the nineteenth century, one Supreme Court nomination in the twentieth century, and at least two nominees to non-judicial offices in the mid-1990s. A recent Congressional Research Service study shows that from 1949 through 2002, senators have employed the filibuster against 35 presidential nominations, on 21 of which senators had sought and invoked cloture. Since 1980, cloture motions have been filed on 14 nominees to Article III courts, including the nominations of Walter Dellinger as head of the Office of Legal Counsel in the Justice Department, Janet Napolitano as U.S. Attorney, and Richard Paez and Marsha Berzon to the Ninth Circuit. As two pre-eminent constitutional scholars, John McGinnis and Michael Rappaport, who both served in the Office of Legal Counsel in the first President Bush's administration, have concluded, "the continuous use of filibusters since the early Republic provides compelling support for their constitutionality."

Before and after the Constitution Subcommittee hearing on May 6, 2003, several arguments have been deployed against the constitutionality of the filibuster. Briefly, I will address the merits and implications of each one.

The first argument against the constitutionality of the filibuster and against the legitimacy of Rule XXII's requirement of a supermajority to invoke cloture against a filibuster of a motion to amend Rule XXII is that it is not among the specific instances of supermajority voting requirements recognized in the Constitution. The Constitution specifically requires a supermajority vote in only seven situations. The opponents of the filibuster contend this enumeration of the instances in which the Constitution requires a supermajority suggests the possibility that the Framers assumed that a simple majority vote in each chamber would suffice for all congressional action.

This first argument against the filibuster is undercut by more plausible interpretations of the Constitution. The Constitution may be sensibly read as not setting forth the maximum instances requiring super-majority voting but rather as requiring supermajority voting in only seven specified instances and leaving Congress with the discretion to decide voting procedures in other situations. That the Senate has been given such discretion seems answered by Article I, Section 5's empowerment of each chamber to make the rules for its respective proceedings. While no one believes that this clause gives unbounded discretion to the Senate in formulating its procedural rules, the clause itself imposes no limits on the discretion of the Senate. The only limits are imposed by the Constitution's other, substantive guarantees, such as the First Amendment.

The second argument employed against the constitutionality of the filibuster is that it violates majority rule in the Senate. This argument is predicated on reading several provisions of the Constitution as establishing majority rule as a fixed principle to govern the requisite margin for decisive final action by the Senate (with the obvious exceptions of the specific instances in which the Constitution imposes supermajority voting requirements). Yet, a sensible reading of these provisions does not establish majority rule within the Senate as a fixed principle in all but a few instances demarcated by the Constitution. Indeed, the Constitution does not mandate the requisite voting margin for passing laws and confirming nominees. At most, these provisions establish majority rule as the default rule in the absence of any other procedure. The filibuster leaves this default rule in tact. Senate Rule XXII does not require 60 votes to adopt a law; it requires 60 votes to end debate. Passing a bill, or confirming a nomination, still requires a simple majority. Moreover, the clause declaring that a majority is a quorum creates the basic rule for when each chamber may do its business. It says nothing about the voting margin necessary to end debates, pass legislation, or confirm nominees.

Some opponents of the filibuster insist nevertheless that majority rule applies with special force to presidential nominations. The argument is that the Appointments Clause obliges the Senate to give its "Advise and Consent" to presidential nominations and that the filibuster bars a majority of the Senate from exercising this prerogative. The argument is that a majority of the Senate is constitutionally protected in exercising its discretion whether to hold a final vote or not; if it is disposed to hold one, no procedure, or no minority, may stand in its way.

This argument is extremely problematic. First, it is predicated on a flawed reading of the Appointments Clause. The Appointments Clause sets forth the necessary conditions for someone to be appointed as an Article III judge. One of these conditions is nomination by the President, while another is confirmation by the Senate. Confirmation is achieved by a majority vote of the Senate. Thus, the clause sets forth the prerequisites for a lawful presidential appointment. It says nothing about the specific procedures applicable in confirmation proceedings or about how someone may be denied confirmation.

Second, the argument is predicated on a mistaken view that Senate inaction on a nomination somehow impedes a president's nominating authority. Indeed, the President and the Senate are equally involved in, and charged, with responsibility over the appointments of Article III judges and other officials. The clause does not, on its own, vest the President with a privileged role within the appointments process. Relegating the Senate to a secondary or even subservient role within the appointments process is inconsistent with the clause and the Senate's historic role in counter-balancing the President's nominating authority. Moreover, the Appointments Clause does not impose any time limit on any phase within the appointments process. The Constitution does not prohibit the Senate from taking its time in deliberating over legislation or considering nominations. Nor does it mandate a final vote by the Senate. Just as the Constitution does not dictate how quickly a president must act in making a nomination, it does not direct how quickly the Senate must act in approving or disapproving a nomination. Perhaps senators need days, maybe months, or even years to make a final decision. The delays in reaching a final judgment might be attributable to many reasons, including an administration's decision not to release documents a committee believes are necessary to full consideration of a nominee's qualifications, difficulty in scheduling witnesses, or simply protracted negotiations among committee members on whether to confirm a particular nominee. These delays are inevitable in the course of the Senate's providing its advice and consent on the filling of a particular judgeship.

Third, a principle of majority rule in the Senate would wreak havoc in the Senate. It would require overturning longstanding rules and practices of the Senate and disregard the basic principle that such rules and practices are, like congressional statutes, presumptively constitutional. For instance, the opponents of the filibuster urge a reading of the Constitution that would render unconstitutional any action by a committee or individual senator that had the effect of nullifying a judicial nomination. On this reading, committees lose all their traditional powers as gatekeepers for nominations or any other legislative business that a majority might be disposed to approve. This reading would also require overturning the usual practice of the Senate conditioning floor action on the basis of a unanimous consent agreement forged between the Majority and Minority Leaders. Indeed, for more than 160 years there was no way, other than through unanimous consent, to bring a judicial or executive nomination to the floor for a final vote. These (and other) unanimous consent requirements are, based on the arguments before the Committee, unconstitutional, because they have allowed individual senators to offer their objections against some matter being brought to the floor of the Senate and thereby forcing the party leaders to construct a new agreement. In addition, this reading of the Appointments Clause would render unconstitutional any temporary holds, which have been used routinely to delay final consideration of legislation and nominations. Temporary holds near the end of a legislative session can often be fatal delay a nomination just long enough near the end of a session time runs out for the Senate to act and the nomination lapses. Such actions would be intolerable on a reading of the Appointments Clause as investing a majority of the Senate with the entitlement never to be stopped, for procedural reasons, from rendering a majority vote on every nomination a president makes.

Such actions are also hard to square with the fact that for the past 212 years, there has never been a Senate rule allowing a simple majority to force a vote on a judicial nomination or any other matter. Reading the Appointments Clause as entitling, or empowering, a majority of the Senate to render final votes on presidential nominations would mean, however, that there have been constitutional violations every time nominees have failed to receive final votes on their nominations. The purported constitutional violation would arise when a majority is willing but unable for some reason to confirm a nominee, but it is unclear what procedures the Constitution requires to determine a majority's willingness to vote prior to the final vote. Even a vote for cloture does not necessarily reflect how senators will vote on a disputed nomination, because some senators might like filibusters less than they like the nomination(s) being filibustered. Moreover, a reading of the Appointments Clause as empowering a majority to vote on a presidential nomination when it is disposed to confirm, leaves unclear the legitimacy of senators' changing their minds once they have initially signaled their willingness to confirm. The initial signals are what made the final vote possible, even though a change of mind in a close vote could spell the difference between rejection and confirmation. Nor is it clear how majority rule can be implemented if some senators whose votes are needed to make a majority possible have not formed any preferences before the final vote on a contested nominee. Enforcing the principle also seems difficult, because once a nomination has expired for any reason the President might nominate someone else to the vacancy, in which case no remedy appears available to make whole a nominee who has been denied a final vote by a favorable disposed majority of the Senate.

A fixed principle of majority rule in the Senate would mean that during at least six of the eight years of Bill Clinton's presidency Republican senators repeatedly violated the Constitution. During Clinton's presidency, the Senate failed to hold committee hearings for 55 of President Clinton's judicial nominees and the Judiciary Committee did not vote on 10 others. It is reasonable to assume a majority of the Senate, if given a chance, would have confirmed at least some if not all of these nominees, including the incoming Dean of the Harvard Law School Elena Kagan. President Clinton surely believed all these nominees would have been confirmed if the full Senate had voted on their nominations. (Indeed, a reasonable assumption is that a president would nominate only people he had reason to believe would be confirmed.) Thus, accepting a fixed principle of majority rule in the Senate would lead one to conclude that the Chair of the Senate Judiciary Committee conspired repeatedly, either alone or in conjunction with a few other senators, to violate the Constitution throughout six of the eight years of the Clinton presidency. I for one cannot believe any such thing.

In order to avoid such absurd results and still accept a fixed principle of majority rule in the Senate, one would have to believe that a majority has a constitutional entitlement to vote as well as not to vote. A legitimate failure to vote must be the consequence of majoritarian preferences. If a failure to vote were not a consequence of the majority's actual preferences, then opponents of the filibuster suggest such a failure violates majority rule in the confirmation process. The first difficulty with this construction is that it lacks any support in the text of the Constitution or historical practices. It is undercut by a much more plausible reading of the Appointments Clause as merely making presidential nomination and Senate "Advice and Consent" preconditions for final appointment. The text says nothing about the circumstances that must exist within the Senate between the time a nomination is made and the time that the office to which a nomination has been made has finally been filled by someone confirmed by the Senate.

Nevertheless, to preserve the constitutionality of committee inaction in the past, some experts have suggested that the committee structure within the Senate is permissible but the filibuster is not, because majoritarian acquiescence legitimizes committee rulings. The problem is how does anyone know whether or when a majority has acquiesced in committee rulings. There has been no formal vote taken by a majority to approve a committee's negative recommendations, so the proof of acquiescence is absent. The absence of an organized response by a majority to a committee's negative recommendation hardly confirms there was acquiescence. A failure to act is explicable on all sorts of grounds. A failure to act could be easily construed as accepting that the majority's will is not relevant to Committee decisions. The reason committee actions are legitimate is not that a majority supports them but that committees are duly authorized pursuant to the Senate rules.

The final problem with majority rule as a fixed principle within the Senate is that Supreme Court precedent cuts against it. As Chief Justice Warren Burger remarked on behalf of a unanimous Court, "Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue." Thus, unanimity is usually required for jury verdicts, and the Senate has many counter-majoritarian traditions, of which the filibuster is only one.

The third argument against the filibuster is that the Senate Rules impermissibly permit the entrenchment of the filibuster. Rule 22 requires at least 60 votes to invoke cloture and at least two-thirds of the Senate to end a filibuster of a motion to amend Rule 22, while Rule V provides that "the rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." The basic argument is that these rules allow a current Senate to deprive a future majority within the Senate to choose the rules including those governing the filibuster under which they prefer to operate.

This argument, too, is problematic. First, and most importantly, the Senate is a "continuous body." For good reason, the Senate has always viewed itself as a continuous body and has had a continuous practice not to reconstruct itself, like the House of Representatives, from scratch at the outset of every session. On three separate occasions, the Supreme Court has recognized the Senate as a distinctive political body in the constitutional scheme because it is continuous. As Professor Cynthia Farina has explained, the Senate is unique within our constitutional structure: "[S]taggered election [placing one-third of Senate seats at risk every two years] increases institutional stability by rendering the Senate an effectively continuous body in contrast to the House, which must fully reconstitute itself every two years." Professor Vikram Amar agrees, as he has explained more than once, that "while the [Supreme] Court historically may appear the most continuous body, the Senate is the only institution that cannot short of amendment 'turn over' at one time. The President does, the House conceivably could, and the Court effectively could as well, if the political branches 'packed it' . . ." Thus, the unique structure of the Senate relieves it of any obligation, or necessity, to reconstitute itself anew in every congressional session. To the contrary, Rule V formalizes the Senate's longstanding, unswerving recognition of itself as a continuing body whose rules are already in effect at the outset of each session.

Moreover, the unique structure of the Senate as a continuing body explains the facts that, unlike the House, the Senate has standing rules and standing committees. The anti-entrenchment argument suggests the Senate lacks the authority to enact standing rules and to appoint standing committees.

Second, there is no constitutional directive against entrenchment the enactment of statutes or internal legislative rules that are binding against subsequent legislative actors in the same form. Just the opposite is true within the legislative process, in which entrenchment is commonplace. For instance, as Professors Eric Posner and Adrian Vermeule of the University of Chicago have suggested, "rooting the rule against entrenchment in the equal authority of successive legislatures is hard to square with Congress' undisputed authority to enact laws containing sunset clauses clauses that cause a statute to lapse, by operation of law, after a defined period." Even statutes without sunset clauses entrench policies because they remain in effect indefinitely until a subsequent Congress chooses to displace them and thus require a subsequent Congress to expend resources and incur costs to revise or alter the policies already in effect. Yet, no one argues questions the constitutionality of such policy enactments on entrenchment grounds.

The response that displacing a prior statute is easier than changing rules because of the different voting procedures misses the point. Either anti-entrenchment is a constitutional requirement, or it is not. If it is a requirement, then it requires foregoing or striking down any statute or rule that impedes a legislative majority from implementing its statutory or procedural preferences. A new Congress cannot muster the will or the resources to enact an entirely new set of laws or rules. It will invariably leave intact some policy or rule not preferred by a current majority and thus allow entrenchment to occur. In any event, Rule V implements the sound practice that the pre-existing Rules of the Senate remain in effect and can be changed only in accordance with the Rules themselves. Otherwise, each new Senate would lack any rules for proceeding at the outset of a session, which would be a recipe for chaos. Rule V thus helps to provide for institutional stability within the Senate.

A final problem with the anti-entrenchment argument is that it depends on a loose rather than a strict interpretation of the text of the Constitution. Experts who advance this argument must claim support for it based largely on the silences of the Constitution and the constitutional convention and ratification debates. Anti-entrenchment traces its roots back to a belief that the framers had embraced anti-entrenchment so extensively that they assumed no current legislature may bind a future one and so felt no need to include any provision to that effect in the Constitution. That Virginia, prior to ratification, expressly included such a provision within one of its statutes suggests, however, that positive law had to provide for anti-entrenchment. The Virginia experience suggests at least some of the Framers knew that anti-entrenchment should be expressly guaranteed rather than left to legislative silence.

It is surely an odd constitutional argument that depends on the silence of the constitutional and ratification debates. One would think that the silence of the constitutional text, coupled with the silence of the constitutional convention and ratification debates, would amount to nothing more than silence, i.e., nothing. Moreover, the text of the Constitution trumps any argument based on the Framers' silence. If this were not true, reliance on the text of the Constitution would be pointless, for the Framers' silence could be invoked on many questions that seem settled or barred by the plain language of the Constitution. The fact remains that the text does empower each chamber of the Congress to devise rules for their respective proceedings and creates the Senate as a unique political body in which only a third of its members stand for re-election in any given election cycle. These two provisions sensibly allow great latitude in the Senate for determining its procedural rules and for making the reasonable judgment to adopt a rule that would relieve the institution of the necessity for re-constituting itself at the beginning of every congressional session. The House must re-constitute itself at the outset of each session, because its entire membership begins anew with each session, but there is no corresponding need in the Senate by design.

In this final Part, I wish to assess the relative merits (and consequences) of the options before the Senate Rules Committee. The first is of course to amend Rule XXII as proposed by the Senate Majority Leader. His proposal is, however, rather confusing. There is an inexplicable disjuncture between the rhetoric of the proponents for amending Rule XXII and current circumstances. There has been much rhetoric about the crisis precipitated by the current filibuster against two judicial nominations. The vacancy rate on the federal courts is the lowest in 13 years, and the Senate has confirmed over 120 of the President's judicial nominations. There are many periods of our history when filibusters (and other dilatory tactics) were deployed much more often (even against nominations), and the 65 judicial nominations of President Clinton on which the Senate never acted clearly constitute a much more serious problem than anything currently confronting the Senate. Yet, the majority expressed no concern that its will was being frustrated, even when President Clinton vainly insisted that his nominees were constitutionally entitled to committee hearings and final Senate votes. Consequently, it is hard to understand the pressing need for change, much less proposals that seek to effectively remove the filibuster as an impediment to any presidential nomination not just to one for life-time appointments.

It is also hard to understand why nominations receive privileged treatment over other legislative business in the proposals before the Committee. Treaties are important, and have been filibustered in the past; however, no one is arguing that the Senate is obliged to vote on every treaty negotiated by a president or risk impeding the President's authority to negotiate treaties. Nor is anyone arguing that majority rule extends to legislation, even though legislation has frequently been the target of filibusters.

Second, the proposed amendment to Rule XXII jeopardizes many other counter- majoritarian requirements provided in the Rules of the Senate. These include, among many others, the requirement that points of order under the Budget Act may only be waived by a three- fifths majority.

Third, the proposals to amend Rule XXII depend on a dubious distinction between filibusters to facilitate deliberation and filibusters aimed at obstruction. Opponents of the filibuster defend the legitimacy of some past filibusters on the ground that they were used merely to extend debate and were not unconstitutional because the Senate finally voted on the matter being filibustered. The problem with this argument is that the motivation behind the filibuster is irrelevant to its constitutionality. The argument urged upon the Committee is that preventing a willing majority from reaching a question violates the Constitution; on this argument, the extent of the delay is unimportant. Moreover, a so-called deliberative filibuster is simply one that did not successfully defeat the matter being filibustered. For instance, cloture petitions were necessary in 2000 to obtain votes on the nominations of Richard Paez and Marsha Berzon, after opponents repeatedly delayed action on them for over four years in Judge Paez's case. These delays were not undertaken to encourage further deliberation, particularly over Judge Paez' nomination.

Fourth, and perhaps most importantly, changing Rule XXII without following the Senate rules would be disastrous for the Senate. The proposals before the Rules Committee depend on arguments that would require treating Rule XXII's super-majority voting requirements unconstitutional and thus disallowing a filibuster of a motion to amend those requirements. To amend Rule XXII without allowing these provisions to take effect would constitute the first time in the history of the Senate that the Senate amended a rule not in accordance with the Senate's own rules. No one has better characterized the implications of this move better than Norman Ornstein of the American Enterprise Institute when he wrote that if a majority "void[s] a rule that they themselves have employed in the past, they will break the back of the Senate. Democrats could block Republican legislative efforts at every turn. For a short-term victory now, Republicans would reap the whirlwind."

Fifth, I hope that the Rules Committee does not lose sight of the other options before the Senate, besides amending Rule XXII. For executive nominations that might be filibustered, the President has two options: The first is to appoint someone as an acting official in compliance with the Federal Revised Vacancies Act, and the other is make a recess appointment. Neither of these options is of course permanent, but each allows the President to get a position filled and thus to get assistance in doing the important work of the executive branch.

For judicial nominations, the President also has the option of making a recess appointment, as many presidents, including George Washington have done. A recess appointment of an Article III judge is trickier than the recess appointment of an executive officer, because it is not clear that someone who lacks the unique protections and attributes of an Article III judge may wield the power of an Article III judge. Nevertheless, the fact that the recess appointments clause has no exceptions to the offices the President may fill supports a recess appointment of a judge.

Lastly, no revision of Rule XXII is necessary, because the Constitution provides a perfectly adequate safeguard against its abusive exercises as well as its entrenchment, i.e., the Constitution allows senators to be held politically accountable for their actions. If a majority's will is frustrated for any reason, the President and those who have supported his contested nominations may exact revenge through the political process or seek common ground to resolve their differences with a substantial minority of their colleagues. The Constitution both empowers national political leaders to make choices and then to be politically accountable for the choices they make.

I appreciate the concerns expressed by many senators about the tactics of a substantial minority of the Senate. I would think, however, that if a substantial minority of the Senate has a problem with something, their concerns are worthy of our attention. This might especially be true with respect to a judicial nomination, for the decision to confirm an Article III judge is much harder (if not impossible) to undo than a piece of legislation and will thus be entrenched years if not decades after his appointment. The filibuster allows the concerns of skeptical senators to be heard. It also reflects the Senate's longstanding respect for minority views and underscores the unique role of the Senate as a part of American democracy. It has the salutary effect of giving an incentive to all sides to seek compromise on issues where points of view are sharply divided. With regard to nominations to an independent branch of government such as the judiciary, the filibuster encourages the President to find common ground with the Senate by nominating individuals who can garner consensus. Through his nominating power, the President can make a choice that will divide the Senate, or he can make one that can bring people together.

The movement to amend Rule XXII is grounded in part on an expressed need for a "fresh start" in the federal judicial selection process. It is hard to understand how there can be a "fresh start" on judicial nominations or any other legislative business if the Senate, for the first time in its history, seeks to amend a rule without complying with its rules. At the very least, following the rules of the Senate to achieve any change of the rules would signal a healthy, non-partisan respect for the rules. It would reflect a continuation, rather than a breach, of the Senate's longstanding, unswerving practices. It would further reflect the Senate's willingness to follow the rule of law, especially when making decisions on the officials responsible for interpreting the law. It would also provide the best chance possible for the Senate as an institution to undertake an action that will withstand the test of time. The critical question, whenever the Senate considers a constitutional question, is will its decision withstand the test of time, i.e., how will subsequent generations interpret what the Senate has done.

I fear an attempt to amend the cloture rule without following the rules of the Senate would sew the seeds for further discord within the Senate. It would not be a fresh start, but would be perceived by many senators as just the opposite a raw exercise of power, made on unprecedented, seriously contested constitutional grounds, that would produce short-term political victory and long-term ill will among senators. I respectfully doubt whether such an effort will do credit to the Senate in the long run.