Back from the Brink: A Conventional Alternative to the Nuclear Option
The filibuster is a failsafe device—a last-ditch effort to slow a runaway train. When senators find it necessary to filibuster a judicial nominee, it means that the customs and traditions that provide for give-and-take between the Senate and the Executive Branch have broken down.
It doesn't have to be this way. There is an alternative. And that is for the president and the leaders of both parties to revive the historic but defunct practice by which the president seeks not only the "consent" of the Senate but also its "advice" regarding his judicial nominees.
The Constitution provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges and other officers of the United States. "Advice" certainly had meaning for the founding fathers. In 1792, George Mason wrote to James Monroe, "The Word 'Advice' here clearly relates to the Judgment of the Senate on the Expediency or Inexpediency of the Measure, or Appointment; and the Word 'Consent' to their Approbation or Disapprobation of the Person nominated; otherwise the word Advice has no Meaning at all."
Whether or not the clause obliges the president to seek the advice of the Senate, many modern presidents have chosen to do so. Sometimes they have even taken the advice. In 1869, President Grant appointed Edwin Stanton to the Supreme Court in response to a petition from a majority of the Senate and the House.
In 1932, President Hoover presented Senator William E. Borah, the influential chairman of the Foreign Relations Committee, with a list of candidates he was considering to fill the seat vacated by Justice Oliver Wendell Holmes. Borah persuaded Hoover to move the name of the eventual nominee, Benjamin N. Cardozo, from the bottom of the list to the top, and Cardozo was speedily—and unanimously—confirmed.
More recently, President Clinton solicited the views of Senator Orrin Hatch, then the senior Republican on the Judiciary Committee, before nominating Ruth Bader Ginsburg and Stephen G. Breyer to the Court, both of whom were easily confirmed with Senator Hatch's support.
If the president fails to seek advice, should he be surprised when senators are unwilling to give their consent?
In a recent speech at the Center for American Progress, the dean of the Senate, Robert c= Byrd of West Virginia, suggested that the White House and the bipartisan leadership of the Senate enter into a formal consultative process that would yield a list of nominees who are broadly acceptable to both sides. His proposal is based on a resolution that he and Senator Specter, now the chairman of the Judiciary Committee, introduced in 1997 to establish an advisory role for the Senate in the selection of Supreme Court justices. Under the Specter-Byrd proposal, the Judiciary Committee would create a pool of potential nominees who had been vetted with distinguished members of the Bench and the Bar and pre-cleared by the committee. The president would have no obligation to select a nominee from the pool, but he would know that by doing so he could ensure a speedy confirmation with a bipartisan—and filibuster-proof—majority.
With or without such a formal procedure, it is not too late for the president and Congress to develop an orderly process for vetting prospective nominees that is respectful of the constitutional role and prerogatives of each branch. The president should meet with the bipartisan leaders of the Senate and the Judiciary Committee to signal his readiness to seek the advice of the Senate on judicial nominations and to work cooperatively with committee leaders to fill vacancies in a timely fashion. For their part, once a process is in place that generates nominees who are broadly acceptable to the Senate, Senate leaders should honor their part of the bargain, opposing procedural devices, including holds and filibusters, whose purpose is to delay or frustrate the timely confirmation of the president's nominees.
There is yet time for thoughtful people on both sides to avert a confrontation that would impair the ability of the Senate to act as an effective counterweight to presidential power, and do irreparable harm to the one institution that has functioned since its inception under customs and traditions that ensure an atmosphere of careful—and mostly cordial—deliberation. As two conservative former senators, Jim McClure and Malcolm Wallop, have written, "It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner."
It does not require an overhaul of Senate rules to prevent a filibuster of judicial nominees. All that is required is that the president seek, and the Senate provide, the advice that will ensure that judicial nominees are highly qualified men and women whose views are within the broad constitutional mainstream—where most of the country is.
John D. Podesta is President and CEO of the Center for American Progress and was White House Chief of Staff from 1998-2001. Mark D. Agrast is a Senior Fellow at the Center. Podesta served as Majority Counsel on the Senate Judiciary Committee; Agrast was Counsel and Legislative Director for Rep. William Delahunt on the House Judiciary Committee.