If the Judicial Confirmation Process Is Broken, Can a Statute Fix It?

• Publication year: 2021

85 Nebraska L. Rev. 960. If the Judicial Confirmation Process Is Broken, Can a Statute Fix It?

960

Aaron-Andrew P. Bruhl*

If the Judicial Confirmation Process Is Broken, Can a Statute Fix It?

TABLE OF CONTENTS

I. Introduction .................................................. 960 R
II. Some Details About the Confirmations Statute .................. 967 R
A. Why and How Would Such a Statute Be Enacted?
Commitment Versus Mere Opportunism ......................... 967 R
B. Key Components of the Statute .............................. 971 R
C. Would the Statute Work? .................................... 973 R
III. Finding the Source of Authority for the Confirmations
Statute ....................................................... 976 R
A. Does the Rules of Proceedings Clause Authorize
Statutes? .................................................. 977 R
B. The Appointments Clause as a Surer Alternative ............. 980 R
IV. The Putative Problem of Binding Future Senates ................ 983 R
A. The Failure of the Entrenchment Critique ................... 985 R
B. The Rules of Proceedings Clause as an Anti-
Entrenchment Rule? ......................................... 989 R
V. Interfering with Senate Autonomy .............................. 990 R
A. How Policy Outcomes Are Not the Issue ...................... 991 R
B. The Practicalities and Indignities of a Non-
Autonomous Senate .......................................... 993 R
C. Cameral Autonomy over Procedure ............................ 996 R
D. Applying Cameral Autonomy ................................. 1007 R
VI. How the Statute Could Work in Practice ....................... 1011 R
VII. Conclusion ................................................... 1013 R

I. INTRODUCTION

The process of confirming federal judges is in large part a political affair, and so opinions regarding the health of the confirmation process tend to differ in predictably partisan ways. With a Republican

961

president in the White House, Republicans complain about Democratic obstruction of nominations and urge reforms that would streamline what they regard as a broken process.1 Democrats, in contrast, point out that the vast majority of President Bush's nominees have been confirmed and contend that the process is working just fine or, at least, much more smoothly and fairly than it did for President Clin-ton's nominees. During the Clinton years, of course, Democrats railed against alleged Republican abuses and proposed reforms not unlike those now favored by Republicans.

It may be that all of the turmoil over judicial confirmations is simply ordinary politics at work. If a Democrat wins the 2008 election, the roles will reverse once again, there will be recriminations and counter-recriminations over alleged obstructionism, some nominations will be held up, but the Republic will surely get along just fine. The appointments process is to some degree engineered to produce conflict, and one should be wary of those who contend that things are uniquely more politicized and turbulent now than they have been in the past.2

All the same, many respectable institutional players with longterm interests that transcend transient partisan advantage really do seem to believe that something has gone seriously awry.3 If one tries to abstract away from one's own partisan feelings and (at the risk of quaintness) adopt a good-government, commonweal-regarding perspective on the matter, one might well be sympathetic to the idea that things can be and ought to be better. This Article, however, will remain agnostic on the question whether reform is, all things consid

962

ered, a desirable thing, and it will not delve into the extensive debate over precisely what substantive reforms would be appropriate. This Article aims instead to examine the relatively neglected issue of the vehicle through which reform might take place--that is, the method of implementing whatever reform, if any, is thought desirable.

In particular, this Article will take up the question whether it would be proper to reform the confirmation process not through the vehicles that are most frequently proposed--a constitutional amendment, an amendment to internal Senate rules, an informal "deal" or norm--but instead through the mechanism of a statute. Although statutory reform has not yet been subjected to any significant legal analysis, a growing number of commentators have proposed using the statutory method, and legislation has been introduced in the past.4 A statute regulating confirmations could take a number of different forms depending upon what particular substantive reforms were thought best (or were capable of winning passage at a given time). The statute could, for instance, bar filibusters of judicial nominees, thus addressing the Republicans' chief complaint of late. It could mandate that committee hearings be held and committee votes be scheduled within a fixed period of time after the president submits a

963

nomination, thus addressing some of the principal Republican delay tactics during the Clinton presidency. Although the above measures would generally benefit the president, a pro-executive tilt is not a necessary feature of a statutory reform. A more balanced statute could limit the special expedited procedures to cases in which the president picks a nominee from a list provided by the Senate. If a supermajority confirmation rule were thought desirable for policy or political reasons, the statute could set the threshold for cloture at sixty-five (or at fifty-five, or whatever figure one prefers),5 thus attempting to preserve the supermajoritarian consensus-based process in the face of the so-called "nuclear option."6 The statute might apply to Supreme Court vacancies, lower court openings, or both. The important point for this analysis is not what exactly the statute would provide but that the reforms would be set forth in statutory form.

Although proposals for a statute regulating Senate voting rules might at first seem to trespass into the realm of internal Senate prerogatives, this type of statute would not be unprecedented. In fact, similar statutory frameworks governing rules of debate exist in a number of areas, ranging from federal budget mechanisms to the military base closure process.7 Such statutes have become more prevalent in recent times, and they have also started to draw increased scholarly

964

interest.8 But while mostly a modern phenomenon, they are assuredly not novel. Their history in this country arguably stretches back to 1789, to the first Congress under the new Constitution. Indeed, the first statute in the Statutes at Large is a statute governing the order of business at the beginning of each new Congress, a matter that could have been (and in fact is) regulated through the internal rules of each chamber.9 Probably the most familiar of this genre of procedural statutes is the "fast track" framework governing congressional approval of trade agreements. Under fast track, the president submits a bill implementing a newly negotiated trade agreement for congressional approval under special streamlined procedures set forth by statute. A judicial confirmations statute would essentially bring this existing method into a new substantive area.

Is a statute a permissible method of reform in this context? The Constitution provides, in a mostly unappreciated clause, that "[e]ach House may determine the Rules of its Proceedings."10 That is, each chamber may act by itself to govern its own proceedings. Using this authority, both chambers have promulgated standing rules through one-house resolutions, and each house typically governs itself free

965

from the control of the other house or any other branch of government. Does the existence of this unilateral power over the rules of proceedings mean that Congress cannot pass a statute that regulates the Sen-ate's parliamentary procedures for considering a nomination? Stated differently, is the Rules of Proceedings Clause not merely a permission to act unilaterally--"[e]ach House may"--but also an implicit command that the chambers not govern their proceedings through a statute, even if the statute is otherwise within Congress' broad Article I legislative powers? If Congress passes rules in statutory form, would each house nonetheless retain the power to nullify portions of the United States Code by abrogating those statutized rules unilaterally? But if so, how could that result be squared with the legislative veto case of INS v. Chadha,11 which seems to teach that only a statute, and not unilateral action, can undo a statute? Statutized rules are rather mysterious, existing on the still-not-completely-charter border between statutes and rules. They govern parliamentary procedure or or-ganization--the stuff of rules--and yet they are statutes enacted into the United States Code. Part of their attraction is that they are something more than "just" rules, and yet legislators have treated them as something less binding than a normal statute. Statutized rules raise fundamental questions regarding separation of powers, entrenchment, and the distinction between statutes and other modes of legislative activity.

Although statutized rules exist in a number of policy areas, and therefore much of what is said in this Article is generally applicable, the confirmation process does have three distinctive features that require a modified analysis.12 First, unlike most subjects for framework laws, the process of confirming judges requires the consent of the Senate alone, not bicameral approval. This means that the analysis of potential defects in the confirmations statute must focus more on cameral autonomy rather than on Congress-versus-executive dynamics (though the latter is still very important). Second, the appointments process described in Article II of the...