April 21, 2005 The Honorable Bill Frist Senate Majority Leader 509 Hart Senate Office Building Washington, DC 20510 Dear Senator Frist: We, the undersigned professors from law schools throughout the country, are writing to express our opposition to any effort to eliminate the 200-year old right to filibuster in the United States Senate. We are deeply troubled by your reported plan to dismantle one of the only protections for the minority party, drastically weaken the Senate’s constitutionally recognized duties of advice and consent, and rubber-stamp the President’s nominees for the federal courts. We urge you and your colleagues to protect the honored traditions of the Senate and strive to work toward a spirit of bipartisanship. The courts belong to all Americans, not just the party in power. New appointees will help decide, among many other things, the scope of the constitutional right to privacy -- and nominees to the Supreme Court will help decide whether that right will continue to be recognized at all -- whether the courts will continue to allow the federal government to protect our air and water, and whether Americans can count on the enforcement of laws that protect our civil rights. Federal judges exercise an enormous amount of power in the lives of ordinary Americans. Further, the average tenure of federal judges, who unlike executive branch appointments receive lifetime terms, has steadily risen to 24 years. This fundamental, non-political branch of our democracy should not be at the center of a partisan power grab. The Senate filibuster serves an important function in the checks and balances system, preventing a partisan majority from running roughshod over the minority party while promoting bipartisan compromise and moderation. It is a particularly important check when all three branches of government are controlled by one party. As part of the great compromise, the framers of the Constitution designed the Senate to be a fundamentally countermajoritarian institution. Unlike the House of Representatives, each state is represented by two Senators, regardless of its size. This is evidenced by the fact that the 55 Republican Senators represent 131 million Americans while the 44 Democratic Senators represent 13 million more – 144 million. Throughout American history, the Senate, with its longer terms and rules of unlimited debate, has acted as a deliberative body to restrain the impulses of the House and the actions of the President. And since the earliest days of the Republic, the right of extended debate has played an integral part in the Senate’s historic role as restrainer – “an effective if incalculable defense against oppression and overbearing authority.”1 The case for unlimited debate for judicial nominations is far stronger than with respect to other nominations or legislation. While non-judicial appointments are intended to carry out the President’s policies, judges constitute an independent third branch, designed to keep Congress and the executive within constitutional bounds. It is a fundamental and indispensable element of our checks and balances system that judges should not be partial to anyone. Further, the fact that federal judges have life-tenure and can exercise great power, accountable to no one, for several decades, makes protecting the Senate minority’s right of extended debate on judicial nominations especially vital. The Senate’s decision to confirm is practically irreversible, even when new information casts serious doubt on a judge’s fitness to serve. Such irreversibility and longevity are not true of either non-judicial nominations or legislation To check the appointment powers of the President, the United States Constitution assigns the Senate a critical co-equal role in the judicial appointment process. This role is mandated by the founding fathers, and is supported by history, documented by constitutional scholars, and recognized by Republicans. As Article II, Section 2 of the Constitution states, “[The President of the United States] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court, and all other Officers of the United States.” The framers, fresh with memories of the abuses of King George III, intentionally designed a system that divided the appointment power between the Senate and the President. Republican Senator Strom Thurmond, in opposing the nomination of Abe Fortas to be Chief Justice in 1968, explained the Senate’s co-equal role as follows: It is my opinion, further, that if the Senate will turn down this nomination, we will thus indicate to the President and future Presidents that we recognize our responsibility as Senators. After all, this is a dual responsibility. The President merely picks or selects or chooses the individual for a position of this kind, and the Senate has the responsibility of probing into his character and integrity, and into his philosophy, and determining whether or not he is a properly qualified person to fill the particular position under consideration at the time.2 The founding fathers included the “advice and consent” clause not as a rubber stamp, but with the intention that rejection of nominees was a very real possibility. This possibility has been recognized by Senators of both parties. For example, former Senate Judiciary Committee Chairman Orrin Hatch commented that “conducting a fair confirmation process most assuredly does not mean granting the president carte blanche in filling the federal judiciary.”3 Senators of all political persuasions have used their constitutionally-prescribed “advice and consent” authority to reject judicial nominees. Between 1789 and 1900, 20 of 85 Supreme Court nominees did not make it to the bench – they were rejected, withdrawn or not acted upon. Delaying action and filibusters on federal court nominees has precedent in more recent history as well. Republicans blocked over 60 of President Clinton’s nominees – often with a single senator, rather than the substantial minority of 41 Senators that a successful filibuster requires. Senate Republicans also have expressly acknowledged their right to filibuster judicial nominations. During a 2000 filibuster of two of President Clinton’s nominees, Republican Senator Robert Smith of New Hampshire declared, “Don’t . . . tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge I don’t think deserves to be on the court. That is my responsibility. That is my advice and consent role, and I intend to exercise it.”4 In the past, presidents have honored the Senate’s “advice” role by consulting even Senators of the opposing party on judicial nominations. For example, when the Republican Party took control of the Senate in 1995, President Clinton consulted Senate Judiciary Committee Chairman Orrin Hatch in advance of any nomination, and withdrew nominations opposed by Republican Senators, despite criticism from his own party. In addition, Senator Hatch has written that even though he belonged to the minority party in 1993-94, President Clinton consulted with him to nominate Ruth Bader Ginsburg and Stephen Breyer for the Supreme Court. The Bush Administration has flatly refused to engage in any such consultation. Despite current assertions to the contrary, there is no legal basis for the suggestion that the use of filibusters in judicial nominations is unconstitutional. The Constitution does not say that a simple majority vote is required for Senate confirmation of a nominee, and it does not guarantee a vote on any nominee. Rather, Article I, Section 5 of the Constitution authorizes the Senate to determine its own rules of procedure, and Senate Rule XXII requires 60 votes to end debate on legislation or nominations. This tradition of requiring a super-majority to end debate reaches back to our nation’s earliest days. The idea that the majority party can unilaterally change the rules in the “middle of the game” is undemocratic. Further, if filibustering judicial nominees is unconstitutional, so are other common Senate practices used to protect the rights of individual Senators, such as the blue slip process and senatorial “holds.” Republicans, who used these practices profligately during the Clinton Administration, are not making that argument. Elimination of the filibuster in regard to judicial nominations, dubbed the “nuclear option,” would overturn the Senate’s 200 year check on recklessness and would have disastrous consequences for our democracy. As former Republican Senate Majority Leader Howard Baker wrote in 1993, destroying the right to filibuster, “would topple one of the pillars of American Democracy: the protection of minority rights from majority rule. The Senate is the only body in the federal government where these minority rights are fully and specifically protected. It was designed for that purpose by America’s Founders, who saw it, in Jefferson’s words, ‘as a saucer into which the nation’s passions may be poured to cool.’”5 Over the past several years, there have already been significant damages to the rights of the Senate minority and individual Senators. For example, in 2003-04, Senator Hatch unilaterally changed several Judiciary Committee rules that had protected the minority, dropping the blue slip requirement, the requirement that at least one member of the minority party agree to vote on a nominee if any Senator on the Committee objected to holding a vote, and the “Strom Thurmond rule,” which prevented the Senate from considering judicial nominees after the presidential nominating conventions. Such changes have led to an environment where the majority party has little incentive to compromise and has left the minority with no means beyond the filibuster to protect their sacred advice and consent duty. Invoking the nuclear option would also set a dangerous precedent. The Constitution is equally silent regarding the legitimacy of supermajorities to end debate on legislation and judicial nominations. Therefore, the same arguments being used today to try to end filibusters on judicial nominees can be used tomorrow to end filibusters on legislation. We believe that filibusters on judicial nominations have been employed judiciously and appropriately. During President Bush’s first term, the Senate confirmed 204 of his nominees, blocking only 10 of the most radical, out of the mainstream picks. In fact, President Bush has now appointed 24% of all active federal judges, including 20% of all circuit judges. Further, despite claims to the contrary, the federal judiciary does not have a vacancy crisis. There are currently 43 vacancies in the federal judiciary—much lower than the 100-plus vacancies that often existed during the Clinton Administration. We urge you to reaffirm the Senate’s constitutional role in the judicial selection process and strongly oppose any efforts to eliminate the Senators’ right to filibuster. It is important to remember that the pendulum swings, and that the majority today will one day be the minority. Rather than creating chaos in the Senate and destroying the Senate’s honored traditions, there is a clear solution to ending delays on nominations: consultation. President Bush must stop trying to pack the courts with extremist nominees and take seriously the “advice” portion of the advice and consent clause by consulting with Senators from both parties to select moderate, consensus candidates. History proves that consultation produces an excellent federal judiciary. We urge you to strive to retain the crucial role the Senate plays in selecting our nation’s federal judges. Signed,