Senate Resolution 138, as introduced by Dr. Frist, the majority leader for himself and others, seeks to amend Senate Rule XXII to provide for more timely consideration of nominees requiring the advice and consent of the Senate. The proposed amendment accomplishes this by providing for declining majorities for subsequent cloture votes to close debate on nominations until on the fourth try 51 votes shall be needed. The proposal as written applies to all nominations requiring Senate action. It is salutary in that form. Obstructionist delay in the consideration of either executive or judicial nominations harms the separation of powers. Since the harm is greatest as it relates to the judicial branch given the direct reliance of citizens upon the courts for justice and the independence envisioned for Article III judges I will concentrate this testimony on the proposal's value as it relates especially to judicial nominations.

As an abstract matter, it is rightly claimed that the filibuster is part of the Senate's legacy of deliberation. After all, it was not until 1917 that Rule XXII put meaningful restraints on debate. Senator Byrd in his treatise on the Senate recounts the history of robust and unlimited debate in the Senate with meticulous detail, ultimately concluding, that it is what distinguishes the Senate from the House and what merits Gladstone's appellation that the Senate is "the most remarkable of all inventions of modern politics."

I cannot match Senator Byrd's historical completeness or his eloquence; nor is it for me, as a law dean who has never been privileged to serve in the Senate, to posit that the Senator is mistaken in his conclusion that today's Rule XXII "strikes a fair and proper balance between the need to protect the minority against hasty and arbitrary action by a majority and the need for the Senate to be able to act on matters vital to the public interest." Hon. Robert C. Byrd, The Senate 1789-1989 at 162.

Yet, Senator Byrd's conclusion masks two difficulties: (1) there is no longstanding history of applying filibusters to judicial nominations and (2) doing so cannot be meaningfully argued to be in pursuit of needful or justifiable deliberation, as it is when solely legislative matters are considered. With regard to the first difficulty, I find it highly significant that in Senator Byrd's comprehensive treatment of the filibuster, there is no specific mention of the use of the Senate's tradition of unlimited debate to stymie judicial nominees. At best, the Senator notes that, in rare circumstances, such as late nominations made by an outgoing president, the filibuster has been used to preserve the prerogatives of a newly elected president. (See Byrd, supra at 102, commenting on the successful use of the filibuster in the 46th Congress to prevent Rutherford B. Hayes from filling vacancies more properly filled by the newly elected James A. Garfield.)

The second difficulty with applying filibusters to judicial nominations relates to the differences between legislative and appointment deliberations. The Senate acts as a necessary brake upon improvident legislation. It's role is also a check upon the staffing of the judiciary, but here, its duty is functionally interrelated with the appointing authority of one co-equal branch and the day to day operations of another. In this context, the Senate's duty is not merely to debate and evaluate, but also to timely dispose affirmatively or negatively upon an exercise of the executive power of appointment that intimately affects the core, on-going responsibilities of the branch that is intended to be politically independent by constitutional design. Applying the filibuster to judicial nominations is thus qualitatively different than applying it to legislation. Whether it should apply at all is arguable, but at a minimum, a different and more accountable cloture standard is warranted. The debate accompanying the graduated reduction in super- majority vote for cloture envisioned by Dr. Frist's proposal is faithful to the Senate's deliberative history, while not undermining the Senate's accountability to the functioning of coordinate branches.

Senator Daschle suggests that the system of Senate consideration of judicial nominations does not need to be "fixed" since many of President Bush's nominees have been confirmed. This is a reasonable debating point, but it fails to address the systemic danger. With respect, the minority leader's answer is also neither in keeping with the Senate's constitutional responsibility nor respectful of the men and women who are willing to put their professional and personal lives on hold to be considered for judicial office. The Chief Justice and various bar associations have recently bemoaned the effect inadequate judicial salaries have on recruiting men and women of talent for the bench. Combine modest compensation with the uncertainty and public caricature invited by judicial filibusters and it is a recipe for long-term harm to the Third Branch.

Moreover, Senator Daschle's proposition that the system of judicial confirmation is "not broken," is simply belied by the bipartisan acrimony that the present and past use of the judicial filibuster has yielded. Moreover, it fails to account for the fact that with the exception of one judicial filibuster aimed at a Supreme Court nomination in 1968 of a candidate in personal ethical difficulty made by, as Senator Byrd records, a lame duck president, the practice of judicial filibusters dates effectively only to the 1980s or later. And prior to now, only three nominees one judicial and two executive failed to be confirmed as a result of a Senate filibuster or failed cloture vote. President Bush is rightly concerned that the nominations of men and women of high intellect and judicial capability, like Miguel Estrada, Patricia Owen, and now Carolyn Kuhl, are not being deliberated, but deliberately delayed. President Clinton was surely of equal sentiment with respect to his nominees to the Ninth Circuit, Richard Paez and Marsha Berzon. While it is true that cloture was ultimately achieved in the case of the Clinton nominees, the die was cast for the present circumstance. Now, in an even more closely divided Senate, the world's greatest deliberative body is seemingly unable to achieve resolution, either up or down, on judicial nominations that have been favorably reported by the Senate Judiciary Committee to the floor.

There is a constitutional duty to provide timely advice and consent on judicial nominees.

Judicial appointment, itself, is conceded by historians to be an executive function. As the text of the Constitution makes plain, the power to both nominate and appoint rests with the President. Article II, Section 2, Clause 2 provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint, . . . Judges of the Supreme Court" and such inferior courts as Congress establishes. The Senate, of course, has a vital check on both powers through the constitutional review signified by "advice and consent." Yet, it has never denied the executive nature of these nomination and appointment powers. The Senate, itself, signifies this by maintaining a separate executive calendar for nominations and going into executive session to consider them. As Senator Byrd reflects in his treatise: "[i]n the twentieth century, the Senate has rejected very few presidential nominations to either the Supreme Court or the cabinet." Id. at 40.

That the Senate is intended to act in a timely fashion on nominations can also be gleaned from history and the text of the Constitution. Historically, George Washington wrote that "in the appointment of offices, the agency of the Senate is purely executive," and [President Washington] envisioned that as such, [the Senate] may be summoned to the President" to provide such advice. (George Washington to Senate Committee on Treaties and Nominations, August 10, 1789, 30 Writings 377-79.) No modern president, of course, would think of "summoning" the Senate. The comity and mutual respect of the branches eschews such terminology. Yet, the greater institutional deference that has emerged since Washington's time cannot obscure that textually, the appointment power includes its own textual remedy for untimeliness by the Senate namely, recess appointment. The Recess Appointments Clause in Article II, Clause 3, provides that the President alone can "fill up Vacancies that may happen during the Recess of the Senate," thereby providing by implication an encouragement to the Senate to act on all nominations submitted to it in the Session in which the nomination is made.

Now, recess appointments are for a limited time (until the End of their next Session), and even though some notable Justices have found their way to the Court by this means (e.g., Earl Warren), it is modern practice again for reasons of Senate comity to avoid excessive use of this constitutional grant. The judicial filibuster certainly weakens this comity, and that is not only unhealthy for the relationship between Senate and executive, but also problematic for the judiciary which then is administered by temporary officers.

Let me be clear: the Senate has ample authority to set its own rules in Article I, Section 5. Rule XXII permitting the filibuster, even as applied to judicial nominations is not unconstitutional, even as it permits a minority to prevail so long as the Rule has been adopted by the present Senate. This aspect of democratic practice (the unique protection of minority voice) is implicit in everything from the composition of the Senate, itself, to the delegation of responsibilities to committees to the practice of blue slips or judicial holds. One can argue, as I have elsewhere, that it was the understanding of the founding generation, most notably Alexander Hamilton, that nominees would have the benefit of the deliberation of the "whole body" of the Senate, and that, with respect to judicial nominations, procedures that allow committees (or individual members) to defeat a nominee in committee are ill-advised. That said, they are in all likelihood not unconstitutional.

The full Senate can adopt super-majority requirements beyond those provided in the text; though it should be wary about doing so since it contradicts the lesson of unworkability that we know as the Articles of Confederation, encroaches on executive power and threatens judicial independence.

What the Senate, in my judgment, cannot constitutionally do is deprive the whole body of the present Senate at least one opportunity to ratify, amend, or repeal carry-over rules from a previous Senate. Because this opportunity has not yet been afforded the Senate of the 108th Congress, the majority leader's proposal embodied in S. Res. 138 is not an attempt to go outside Senate rules, but to responsibly present at least one aspect of those rules for reconsideration to this committee, and ultimately, the Senate as a whole.

It is beyond the scope of this testimony to engage in the constitutional debate over one Senate's power to bind a successor. Relying upon Blackstone and Supreme Court precedent, if not the obvious need to have the full Senate electorally accountable, it is doubtful whether Senate rules, including the two-thirds cloture limits for changing Senate rules, can simply be imposed on successors. As Senator Byrd recounts in his treatise, the legal question has been with us for a good long time. But as Senator Byrd's history also reveals, there is weighty authority that, as Senator Walsh wrote in 1917, "each new Congress brings with it a new Senate, entitled to consider and adopt its own rules." (Cited in Byrd, supra at 128).

At the beginning of the 85th Congress, Senator Clinton Anderson moved to adopt new rules. His motion was tabled, but before the matter was concluded, Vice President Nixon gave the opinion of the chair that although it was common practice to continue rules from one Congress to the next, "the current Senate could not be bound by any previous rule which denies the membership of the Senate the power to exercise its constitutional right to make its own rules." (Nixon, cited by Byrd, supra at 129).

This same view was articulated in later Congresses by Vice President Humphrey, who did not resolve the constitutional question directly, but out of respect for the Senate's ability to determine its own constitutional questions, referred the matter to the full Senate. The full Senate initially determined that a simple majority could amend the Rules at the beginning of a new Congress, thereby disregarding the two-thirds of the Senate required for cloture on rule changes under Rule XXII. The decision was appealed and reversed without formal explanation but clearly reflecting, in context, only the usefulness of extended debate for legislative matters.

Subsequently, the 94th Congress again endorsed the view that cloture may be invoked by a majority to change Senate rules at the start of a Congress. Senator Byrd reports that political opposition to this led to a parliamentary tangle, from which compromise emerged. Senator Byrd facilitated, as he puts it, the "erasure of the precedent of majority cloture established two weeks before, . . ." In exchange for the "erasure," the Senate adopted a rule change that allows a three-fifths vote of all senators chosen and sworn to invoke cloture on all measures except those amending the rules of the Senate which still requires two-thirds of all the senators present and voting.

This is where we are today, and Senator Byrd observes that "the cloture rule is the product of decades of trial and experience aimed at curbing the extremes in the use of filibusters to block Senate action." Byrd, supra at 133. Senator Byrd deserves much credit for bringing us both the history and the rules themselves, including responsible, but necessary, limit of thirty hours of debate after cloture. But as he records, the rules are the product of "trial and experience," and one matter not fully anticipated by the experience that has yielded the present Rule XXII is the abuse of the filibuster in the matter of judicial nominations. In addition, of course, a political compromise may still be unconstitutional and denying a majority of the Senate by rule at least one opportunity to amend its operative rules is, respectfully, just that. This is especially true when it imperils the functioning of coordinate branches and the separation of powers. As Lloyd Cutler, White House Counsel to Presidents Carter and Clinton similarly concluded, "whatever the merits of the filibuster as a device to defeat disliked legislation, its use to frustrate a judicial appointment creates a dangerous precedent with important implications for the very structure of our Government." Mr. Cutler further observed that the "requirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional" (since they have been imposed by a previous Senate).

Given the power given the Senate over its own rules, the judiciary would be rightly reticent to interfere. But the Constitution binds us all, and even textually unfettered rulemaking authority is subject to its boundaries. Beyond that, there is the oath-based understanding of all constitutional actors to faithfully fulfill the Constitution of the United States. The practice of Vice-Presidents, as presiding officers of the Senate, in referring matters of constitutional interpretation or doubt to the full Senate is a worthy precedent. This hearing, and Senator Frist's proposal, is an extension of that precedent. It is not a so-called "nuclear" option where the prerogatives and traditions of this important body are slighted. To the contrary, it is a mature refinement of the Senate's rules to fully comport with constitutional structure and expectation.

Senate Resolution 138 continues the Senate's tradition of constitutional governance within a framework of responsibly drafted rules that foster both debate and workable government. Gladstone would approve, I think.