Re “Senate’s ‘Nuclear Option,’ ” Commentary, Dec. 5: Michael Gerhardt and Erwin Chemerinsky seem to be inconsistent. They state that the Senate may end up “declaring filibusters of judicial nominations unconstitutional.”
The usual Chemerinsky line is that only the courts decide what is or isn’t constitutional. Either he was wrong before, or other branches of the government can decide constitutionality. If the courts do have the final say, then he is frightening people unnecessarily.
The authors go on to say “the Senate as it has been for more than 200 years will cease to be.” Wrong again. The Senate of 200 years ago ended with the addition of the 17th Amendment, which allowed the popular election of senators.
Professors Gerhardt and Chemerinsky argue that if the Senate’s rules were changed to allow a majority of that body to confirm presidential appointments to the federal courts, “the Senate as it has been for more than 200 years will cease to be.” What about the Constitution as it has been for 200 years? If you had asked each of the 39 men as they signed the Constitution in Philadelphia in September 1787 what percentage of the Senate would be required to confirm presidential nominations to high office, every one would have answered a simple majority.
They knew well how to specify super-majorities in certain special cases: two-thirds of the Senate for ratifying treaties and two-thirds of the House and Senate for proposing constitutional amendments.
Current Senate rules, however, by allowing filibusters of presidential nominations, effectively require three-fifths of the Senate (60 votes) to confirm appointments.
It is time to bring the Senate’s rules into conformity with the U.S. Constitution.
No body created by the Constitution has authority on its own to amend the nation’s fundamental charter of government.
Joseph M. Bessette
Prof., Government & Ethics
Claremont McKenna College
Chemerinsky and Gerhardt praised the use of filibusters to prevent the confirmation of federal judges and criticized efforts to reform its unprecedented use against nominees. Their own academic writings, however, contradict those views. In 2000, Gerhardt published a book critical of super-majority requirements to confirm judges, stating that such rules “would be more likely to frustrate rather than facilitate the making of meritorious appointments” and are “hard to reconcile” with the Constitution. Likewise, Chemerinsky has previously written that the filibuster rules can be changed by a majority vote -- the very tactic that he now derides as a “nuclear” option. In a 1997 Stanford Law Review article, he wrote that the filibuster rule “is unconstitutional” and that “a majority of this Senate could eliminate the filibuster if a majority wished to do so.”
The filibuster is not sacrosanct. There are dozens of laws on the books that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a president’s judicial nominees.
Sen. John Cornyn
Chairman, Senate Judiciary
Subcommittee on the
Constitution, Civil Rights
and Property Rights