Cloture: Its Use and Abuse

I recently wrote to one of my Senators regarding the present silliness in which they are indulging: the application of the cloture rule to override the intention of the U.S. Constitution. I received a reply:

Dear Mr. Meyer:

Thank you for contacting me regarding the
confirmation process for federal judicial
nominations. I appreciate the opportunity to
respond to your views.

The rules of the Senate, through the
cloture rule, provide a means to bring debate to
a close. The cloture rule states that 60
Senators can vote to place a time limit on
debate. If some Senators strongly oppose a bill
or nominee, they can vote to continue debate.
Unless all Senators agree to have a final vote,
a final vote on any matter can be taken only if
and when 60 Senators vote for cloture. The so-
called "nuclear option" would change, through
back-door parliamentary maneuvers, this long-
standing Senate tradition so that debate on
nominations could be ended by just 51 votes.

I am strongly opposed to changing this
long-standing rule of the Senate to make it
easier for judicial nominees outside of the
mainstream to be confirmed. As a Senator, I
have always taken very seriously my
Constitutional duty to provide the President
with "Advice and Consent." I will continue to
consider each nomination that is sent to the
Senate by President Bush very carefully, keeping
your views in mind.

Thank you again for writing to me on this
important issue. Please do not hesitate to
contact me in the future about matters that are
of importance to you.


Sincerely,

Barbara Boxer

United States Senator

First, let me say that this is a terrific improvement over my first experience with Ms. Boxer's office. On that occasion, I sent a letter strongly opposing her position of the moment, and her staff mindlessly offered up a letter thanking me for supporting her position.

So much for representation.

In the current matter, however, Ms. Boxer's efforts to impress me with the cloture rule fail utterly. First, while it's true that the cloture rule has a long tradition (though as she does not state, its tradition includes at least as much abuse as use), the long standing tradition does not include any precedent for its current application to violate the Constitution by effectively requiring a supermajority for confirmation to the judiciary. And worse, when this is invoked in committee, it's not even the full Senate that stops the process, but a superminority!

Let me observe in passing, however, that I had not really expected better, given Ms. Boxer's record; I am not so foolish as that.

The issue here rests on a few key issues:

• The Constitution calls for advice and consent, not advice and denial. To me that suggests that this was intended as a process not expected to routinely do other than confirm. And history supports that supposition.
• The cloture rule is now being used (and remember this is only a rule of the Senate -- something of considerably less importance than the Constitution) to require a supermajority in the advice and consent process. The Constitution is very clear about the contexts in which a supermajority is needed; they are:

• Convicting an Impeachment (2/3 majority in the Senate - Article 1, Section 3)
• Expulsion of a member of one house of Congress (2/3 vote of the house in question - Article 1, Section 5)
• Override a Presidential Veto (2/3 majority in both the House and the Senate - Article 1, Section 7)
• Ratify a treaty (2/3 majority in the Senate - Article 2, Section 2)
• Passing of a Constitutional Amendment by Congress (2/3 majority in both the House and the Senate - Article 5)
• Calling for a Constitutional Convention (2/3 of the state legislatures - Article 5)
• Ratifying a Constitutional Amendment (3/4 of the states - Article 5)
• Restore the ability of certain rebels to serve in the government (2/3 majority in both the House and the Senate - 14th Amendment)
• Approval of removal of the President from his position after the Vice President and the Cabinet approve such removal and after the President contests the removal (2/3 majority in both the House and the Senate 25th Amendment)

• Cloture is not the filibuster, per se, but the means of ending the filibuster through a supermajority. It is quite apparent that the framers of the Constitution could not have foreseen this abuse; had they done so, I have no doubt they would have written expressly to forbid such abuse.

Of particular interest in this case is the net impact of the filibusters, which is to exclude from judicial office (at least at the appellate level, or above) anyone, it seems, who holds strong religious beliefs. This is, on its face, unconstitutional. It is a particularly egregious form of discrimination.

Finally, we should bear in mind that we elect these people to do our work -- to manage the government we find essential to the preservation of the union. When they persist in filibuster, it may rightly be argued that they are effectively refusing to do their jobs. And in that case, we should turn them out, at the next election, and replace them with some who take more seriously the needs and wishes of the electorate.