Schumer: Abandoning Filibuster Undermines Checks and Balances System

SCHUMER: ABANDONING FILIBUSTER UNDERMINES CHECKS AND BALANCE SYSTEM

says Founding Fathers never intended any automatic right to consent, majority or otherwise - there should be no rubber stamp for judicial nominees

US Senator Charles Schumer testified today at the Constitution, Civil Rights and Property Rights Subcommittee on "Judicial Nominations, Filibusters and the Constitution: When a Majority Is Denied Its Right to Consent." Schumer issued the following statement:

"Mr. Chairman, I want to thank you for holding this hearing today and for inviting me to testify. It's an honor to sit here between my two esteemed colleagues, but it's a special honor to be here with Senator Specter who has been a leader on this Committee for so many years. He is one of the brightest, most thoughtful members of the Senate. He's sort of the E.F. Hutton of the Senate - when he speaks, people listen - and rightfully so.

"Before I discuss the specific proposals for revamping the nomination and confirmation process, I just want to note that I was struck by the title of this hearing. The hearing is called: "Judicial Nomination, Filibusters, and the Constitution: When a Majority is Denied it Right to Consent."

"It's one thing to have a discussion regarding the constitutionality of filibusters - as I will discuss in a minute, it's way off base to suggest filibusters are unconstitutional - but it's a whole other matter to suggest the majority has a "right" to consent.

"I've pored over the Constitution and I don't see anything in here about any right to consent for anyone, but certainly not the majority. The Framers wrote the Constitution to limit the majority's power - a majority of Americans can't even necessarily elect a President - just ask Al Gore how he feels about the Electoral College after 2000.

"When you go back and read the debates of the Constitutional Convention, you see that the Framers struggled to find the right balance of power when it came to selecting judges. History tells us that the Framers did not reach this delicate balance easily.

"The Framers had four basic options to choose from when it came to selecting the judicial branch of government. They could give the power to select judges to: (1) the President alone, (2) Congress alone, (3) the President with congressional advice and consent, or (4) Congress with Presidential advice and consent. As they began to piece together the foundation of our country, the Framers discussed and debated all of these options. Then, as now, there was a robust debate about the role of each branch of government should play.

"The first proposal B the Virginia Plan B gave all of the power to appoint judges to the Congress. James Madison soon proposed that the Senate alone appoint judges. Throughout most of the Convention, the working draft of the Constitution contained Madison's plan, giving the Senate exclusive power to appoint judges. But some Framers disagreed. A few of the Framers, but not many, thought that the power to appoint should not be given exclusively to the President.

"The dispute between the two camps centered on two equally important concerns: political corruption in the nomination process and the independence of the judicial branch. Both of these concerns were fundamental to our system of checks and balances. And those concerns are no less relevant today.

"The pro-Presidential-power contingent was beaten back by those who argued it would be easier to corrupt and influence one person, i.e., the President, rather than the many, i.e., the Senators. The pro-Senate-power contingent was offset by those who feared it would give the second branch of government too much power over the third. So the Convention rejected vesting exclusive power with any one branch. But they still needed a compromise.

"In the end, just a few days before a final version of the Constitution was written, the Framers decided to give the President the power to nominate judges balanced by the Senate's power to give advice about those nominations and the power to consent to the appointments.

"The compromise was another example of one of the most unique and enduring traits of our constitutional framework, its system of checks and balances. For those of us who revere the Constitution and who believe in the rule of law, the balance they created is almost a work of art.

"The Framers realized that shared powers were best for the country. And the system of checks and balances they formulated has sustained our democracy for more than 200 years. The suggestion that anyone - much less the majority -- has a right to consent is both anti-constitutional and goes against centuries of Senate practice. Don't take my word for it, just look at the history.

"In 1795, Chief Justice John Jay was stepping down and President Washington nominated John Rutledge as his successor. Before the Senate voted on Rutledge's confirmation, Rutledge gave a speech attacking the Jay Treaty as being excessively pro-British -- which, at the time, would have been sort of like a nominee today going out and giving a speech defending the French. The Senate, having recently ratified the Jay Treaty, voted down the Rutledge nomination, 14-10. Six members of that Senate were also members of the Constitutional Convention. Three of them voted for Rutledge and three voted against.

(I'd note - as an aside - that one of the three opposing Rutledge was Rufus King, a Senator from New York, so I'm continuing in a pretty long and rich tradition here.)

"In one fell swoop, the Senators of that first Congress made clear both that political views are legitimately considered in this process and that there is no right to consent.

"If the Senate has the power to reject nominations, then one can hardly claim the majority has the right to consent. As a constitutional matter, whether a nomination is defeated by an up-or-down vote or by a filibuster is entirely meaningless.

"For the first century-plus of Senate history, there was no mechanism to cut off debate. The cloture vote is a creature of 20th Century Senate procedure, not created until 1917. So to suggest that filibusters are unconstitutional goes against the entire history of the Senate.

"The argument is somehow that it is all right to filibuster legislation, but no all right to filibuster nominations, despite the fact that the words filibuster and cloture don't appear in the Constitution. It's not only anti-constitutional, it's totally illogical.

"When it comes to the current problems, I think it's hard to say that the system is broken. The vacancy rate on the federal courts is at 5.6% -- the national unemployment rate is at 6%. Sometimes it seems the only jobs the White House cares about are those that involve Senate confirmation. Regardless, there aren't many seats left to fill.

"When we were in the majority, we confirmed 100 of the President's nominees. Most of them have been conservatives, but mainstream conservatives, and they've gone through the Senate like a knife through hot butter.

"We're down to under 50 vacancies, and most of those are awaiting nominations or the scheduling of a confirmation hearing. The handful of nominees we Democrats are most vigorously opposing are those who fall way outside the mainstream, will use their judicial powers to make law, not interpret law, or have refused to answer questions and provide documents. So relative to the problems President Clinton's nominees faced, President Bush's nominees are breezing through.

"That said, I'd prefer that we fill every vacancy and get rid of all the rancor regarding these nominations. As I see it, there are two ways to fix the problems. First, the President could take ideology out of the process. Or, second, we could have a true compromise. The proposals that my friends have offered require unilateral disarmament. That may be a good thing when we're negotiating with hostile foreign powers, but when you are talking about a co-equal branch of American government, it's a dangerous thing to do. Saying the Senate should blindly confirm every nominee undermines everything the Framers were attempting to do.

"So if you want a true compromise that preserves balance between the branches, I offer my proposal:
• Create nominating commissions in every state and circuit.
• Give the President and the opposition party leader in the Senate the power to name equal numbers of members of each commission.
• Instruct each commission to propose one name for each vacancy.
• And, barring the discovery of anything that disqualifies the person for service, both the President and the Senate agree to nominate and confirm him or her.

"This proposal preserves balance while removing politics, partisanship, and patronage from the process. I look forward to the rest of this hearing and thank the Chair for giving me the opportunity to testify."