Ten of President Bush's judicial nominees were filibustered by a Democratic minority in the U.S. Senate, during his first term.  It's likely that there will be similar efforts in his second term, probably extending to filibusters of Supreme Court nominees.

This use of the filibuster has prompted much legal and historical analysis and debate, because never before in history had any judicial nominee been derailed, notwithstanding clear majority support for the nominee in the Senate.  For example, Abe Fortas mustered only 45 votes when Senators attempted to end the filibuster of his nomination in 1968, and therefore President Johnson immediately withdrew his nomination.  Fortas publicly acknowledged in his withdrawal letter that he could have ultimately outlasted the filibuster and obtained an up—or—down vote, whereas today's filibusterers proudly declare that the nominees will never receive any up—or—down vote.
 
Whether or not the present nomination filibusters violate the Constitution, they plainly violate the rules of the Senate.  In particular, the press and public have paid little attention to Senate Rule 31, which governs nominations. Senate Rule 31 says that, 'when a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration,' which clearly implies that nominees can only be 'confirmed or rejected' on condition that there is a majority vote.  If for some reason there is no majority vote, then the lapsed nomination is 'neither confirmed nor rejected,' says Rule 31. 

Thus, an attempt to 'reject' a nomination by a minority filibuster is against the Senate Rules.  Of course, filibusters can be used to extend debate about nominees, but Rule 31 makes very clear that a nominee can only be rejected by a simple majority vote.  Nominations have often languished on the Senate calendar or in committee for various reasons, but even when that has been an intentional method of rejecting a nomination, it has been done at the behest of the majority and not the minority.

The recent Democratic filibusters were a brazen attempt by the minority to reject the president's judicial nominees, in direct violation of Senate Rule 31.  The Democratic filibusterers did not claim, as Republican Leader Everett Dirksen did in 1968, that 'there are other things that need exploration.'  On the contrary, Senator Dick Durbin, the current Minority Whip, boasts that the "nominees...were rejected by the Senate last Congress."  Chuck Schumer echoes that theme: "To nominate judges previously rejected by the Senate is wrong." 

Durbin and Schumer might as well be signing a confession, because Senate Rule 31 unambiguously forbids a minority from either confirming or rejecting a nominee.  Of course, President Bush is entitled to renominate even legitimately rejected nominees, just as previous presidents have done (e.g. President Cleveland renominated previously rejected nominee James C. Matthews), and so there is no reason why Bush cannot renominate illegitimately rejected nominees as well.

Nominations are different from legislation, and that is why the Senate Rules treat them differently.  The relevant provisions of Senate Rule 31 were written a long time ago, in 1843 and 1868, but they have not been significantly amended since then.  The Senate ought to enforce those provisions, and soon.

Rule 31 does not command an up—or—down vote for nominations, but Rule 31 does forbid a minority from forcing a nomination to lapse as a means of  rejecting  the nomination.  The Senate minority has created a drastically new situation, which calls for a fresh examination of the text and structure of the Senate Rules, as well as the underlying intent of that Rule.  Such an examination shows that the Rule embodies all of the majoritarian principles of the Constitution, and then some.

Citizens and senators alike should think beyond the passions of the moment, to the long—term consequences of this current crisis.  Abandoning the clear meaning of Senate Rule 31 threatens to ultimately damage or even destroy the rule of law in the United States.

These filibusters are aimed at rejecting judicial nominations instead of merely prolonging debate.  If they are allowed to continue, then judges will have to be chosen from a smaller pool of candidates, having a relatively narrow and homogeneous range of viewpoints, in order to satisfy both the minority as well as the majority parties.  This would mark a sharp break from the past. 

For centuries, different presidents have nominated judges sharing their very different judicial philosophies.  Thus, over the long run, the only surviving judicial precedents have tended to be those that are firmly grounded in the objective meaning of our laws.  Abandoning Rule 31 would mean that judges will be less constrained by the need to persuade their colleagues, and by the need to persuade their successors, because judges will be more alike in viewpoint and temperament.  This would be dangerous for the appeals courts, catastrophic for the Supreme Court, and apocalyptic for the rule of law.  Ideological diversity of judges appointed by different presidents functions as a kind of internal check—and—balance within the judicial branch of government.

Senate Rule 31 is not just some obscure little regulation.  Much of it was written by the same people who wrote the Fourteenth Amendment of our Constitution.  This rule also reflects the wisdom of the original founders of our country. 

Alexander Hamilton's language is a bit old—fashioned, but his message is loud and clear, if we have an inclination to listen:

'[I]t could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy.' 

Hamilton and his contemporaries trusted a majority of the Senate to properly screen the president's nominees, and from his day to ours that system has worked pretty well.  I seriously doubt that perpetually filibustering judicial nominees will be an improvement.

Andrew T. Hyman is an attorney practicing in Monroe, Connecticut.  He has authored law review articles dealing with constitutional law. He can be emailed at a@andrewhyman.com.