Order Code RL32102
CRS Report for Congress
Received through the CRS Web
Constitutionality of a
Senate Filibuster of a
Judicial Nomination
Updated December 6, 2004
Jay R. Shampansky
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Constitutionality of a Senate Filibuster of a Judicial
Nomination
Summary
The Senate cloture rule requires a super-majority vote to terminate a filibuster
(i.e., extended debate). The Appointments Clause of the Constitution, which
provides that the President is to “nominate, and by and with the Advice and Consent
of the Senate, ... appoint” judges, does not impose a super-majority requirement for
Senate confirmation. Critics of the Senate filibuster argue that a filibuster of a
judicial nomination is unconstitutional in that it effectively requires a super-majority
vote for confirmation, although the Appointments Clause does not require such a
super-majority vote.
It has been argued that the Senate’s constitutional power to determine the rules
of its proceedings, as well as historical practice, provide the foundation for the
filibuster. The question of the constitutionality of the filibuster of a judicial
nomination turns on an assessment of whether the Senate’s power to make rules
governing its own proceedings is broad enough to apply the filibuster rule to
nominations. Several factors have the effect of entrenching the filibuster (i.e.,
making it possible to filibuster a proposed amendment to the rules).
Supporters and critics of the filibuster of judicial nominations disagree about the
relative roles of the President and the Senate in regard to judicial appointments, about
whether the Senate has a duty to dispose of the President’s judicial nominations in
a timely fashion, and about whether a simple majority of Senators has a constitutional
right to proceed to a vote on a nomination. The constitutionality of the filibuster
might be challenged in court, but it is uncertain whether such an action would be
justiciable (i.e., appropriate for judicial resolution). Standing and the political
question doctrine would be the primary justiciability issues raised by a court
challenge to the filibuster rule.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Majority Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rulemaking Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Entrenchment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Senate, the President, and Judicial Appointments . . . . . . . . . . . . . . . . . . . . . 7
The Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Framers’ Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Arguments of Supporters and Critics of Filibusters of
Judicial Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Recess Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Appeal to the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Political Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Constitutionality of a Senate Filibuster of a
Judicial Nomination
Introduction
This report provides an overview of the major issues which have been raised
recently in the Senate1 and in the press2 concerning the constitutionality of a Senate
filibuster (i.e., extended debate)3 of a judicial nomination. The Senate cloture4 rule
1See Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its
Right to Consent
, Hearing before the Subcommittee on the Constitution of the Senate
Committee on the Judiciary, 108th Cong., 1st Sess. (2003)[hereinafter, Judiciary Committee
Hearing
].
From 6:00 p.m. on November 12 to 9:30 a.m. on November 14, 2003, the Senate engaged
in an extended debate (a “talkathon”) concerning recent filibusters of several of President
Bush’s judicial nominees. 149 Cong. Rec. S14528–14785 (daily ed. Nov. 12, 2003). The
“extraordinary session” was intended to provide an opportunity to debate the merits of three
pending judicial nominees, the Senate’s constitutional role in the appointment of federal
judges, and filibuster reform. Id. at 14528 (remarks of Senator Frist). See generally
Dlouhy, Judicial War Far from Over, 61 Cong. Qtly. 2824 (2003), Kane, GOP Still Lacks
Votes on Rules
, Roll Call, Nov. 17, 2003.
2See, e.g., Lane, Filibusters: Whose Rule, and Whose to Change?, Washington Post, May
9, 2003, at p. A13.
Concern has been expressed in particular about the possibility of a filibuster of a Supreme
Court nominee. See Shane, The Filibuster under Fire, New York Times, Nov. 21, 2004, at
p. 5. For analysis of the procedural issues in regard to a filibuster of a Supreme Court
nomination, see generally CRS Report RL31989, Supreme Court Appointment Process:
Roles of the President, Judiciary Committee, and Senate
, by Denis Rutkus. For analysis of
the confirmation process of Supreme Court nominees, see generally CRS Report RL31171,
Supreme Court Nominations Not Confirmed, 1789-2002, by Henry B. Hogue.
3 “The Senate is traditionally understood as a body of unlimited debate.” Judicial Watch,
Inc. v. United States Senate
, No. 1:03CV01066(CKK), 2004 U.S. Dist. LEXIS 20032, at *33
(D.D.C. Oct. 6, 2004). There is no rule of the Senate which specifically provides for a
filibuster. As explained in Riddick, Senate Procedure, S. Doc. No. 101-28, 101st Cong., 2d
Sess. 717 (1992), “in the absence of either cloture or a statutory limitation of debate or a
unanimous consent agreement, debate may continue indefinitely if there is a Senator or
group of Senators who wish to exercise the right of debate.” (For a definition of “cloture,”
see infra note 4.)
For analysis of the procedural issues, see generally CRS Report RL30360, Filibusters and
Cloture in the Senate
, by Richard S. Beth and Stanley Bach; CRS Report 98-780, Cloture:
Its Effect on Senate Proceedings
, by Christopher M. Davis and Walter J. Oleszek; CRS
(continued...)

CRS-2
(Rule XXII, par. 2) requires a super-majority vote5 to terminate a filibuster. The
Appointments Clause of the Constitution,6 which provides that the President is to
“nominate, and by and with the Advice and Consent of the Senate, ... appoint”
judges, does not impose a super-majority requirement for Senate confirmation.
Since it has the effect of requiring a super-majority vote on a nomination,
because it usually requires the votes of 60 Senators to end a filibuster,7 it has been
argued that a filibuster of a judicial nomination is unconstitutional. In the absence
of (1) any constitutional provision specifically governing Senate debate8 and (2) any
judicial ruling directly on point, and given the division of scholarly opinion, this
report will examine the issues but will not attempt a definitive resolution of them.
Majority Rule
The framers of the Constitution were committed to majority rule as a general
principle.9 However, no provision of the Constitution expressly requires that the
3(...continued)
Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor
Procedure
, by Elizabeth Rybicki; and CRS Report RL31948, Evolution of the Senate’s Role
in the Nomination and Confirmation Process: A Brief History
, by Betsy Palmer.
4“Cloture is the means by which the Senate limits debate on a measure or matter.” Riddick,
S. Doc. No. 101-28, at 282.
5A “simple majority” is a majority of legislators present and voting when a quorum is
present (i.e., one-half plus one of the Members voting). An “extraordinary majority”
(sometimes referred to as a “super majority”) requires some higher percentage of Members
to pass a measure than a simple majority. See Dyer v. Blair, 390 F. Supp. 1291, 1296 n.4,
1305 (N.D.Ill. 1975)(three-judge court).
6Art. II, § 2, cl. 2.
7See King, Deconstructing Gordon and Contingent Legislative Authority: The
Constitutionality of Supermajority Rules
, 6 U. Ch. L. Sch. Roundtable 133, 136 (1999); Fisk
and Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 215 (1997).
8See Fisk and Chemerinsky, supra note 7, at 224.
9See, e.g., Federalist No. 58, p. 397 (Cooke ed.; Wesleyan Univ. Press: 1961) (Madison,
responding to objections that the Constitution should have required “more than a majority
... for a quorum, and in particular cases, if not in all, more than a majority of a quorum for
a decision,” asserted that such requirements would be inconsistent with majority rule, which
is “the fundamental principle of free government”); id., No. 22, p. 138-39 (Hamilton
observed that “equal suffrage among the States under the Articles of Confederation
contradicts that fundamental maxim of republican government which requires that the sense
of the majority should prevail”).
One scholar (Leach, House Rule XXI and an Argument Against a Constitutional
Requirement for Majority Rule in Congress
, 44 U.C.L.A. L. Rev. 1253,1263-64 (1997)) has
observed:
(continued...)

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Senate and the House act by majority vote in enacting legislation or in exercising
their other constitutional powers. There is a provision specifying that “a majority of
each [House] shall constitute a quorum to do business.”10 There are also a few
provisions dictating that the Senate or House muster a two-thirds extraordinary
majority to transact certain business of an exceptional nature.11
Although there is no constitutional provision requiring that the Senate act by
majority vote in instances not governed by one of the provisions mandating an
extraordinary majority, “the Senate operates under ‘a majority rule’ to transact
business — a majority of the Senators voting, a quorum being present — with the
exceptions set forth in the Constitution and the rules of the Senate.”12
9(...continued)
Although The Federalist provides compelling evidence that majority rule is to
be the procedural norm, it hardly follows that the Framers intended majoritarian
procedures to be the only method by which Congresses could conduct
themselves, nor does it necessarily preclude future Congresses from themselves
deciding that certain issues should be the subject of supermajoritarian scrutiny.
For one, despite the frustration the delegates had experienced with the
supermajorities of the Articles of Confederation, they resisted any temptation to
explicitly prohibit them.... [I]t is impossible to deny that the ... [Constitution] is
replete with violations of the "fundamental" principle of majority rule. The most
glaring example is the United States Senate, which originally was not popularly
elected and whose structure still allows fifty-one senators from the twenty-six
least populated states to defeat the will of the majority of the American people....
[T]he Framers had a number of competing goals. Despite ample reasons and
opportunities for imposing a majoritarian requirement, the Framers remained
silent on the subject, while giving Congress wide authority to make its own rules.
Their intent can only be described as ambiguous.
10Art. I, § 5, cl. 1.
11It requires a vote of “two thirds of the Members present” for the Senate to convict an
individual in an impeachment proceeding. Art. I, § 3, cl. 6. The Senate or House may,
“with the concurrence of two thirds,” expel a Member from the body. Art. I, § 5, cl. 2. A
vote of two thirds of each House is required to pass a bill (Art. I, § 7, cl. 2) or a joint
resolution (Art. I, § 7, cl. 3) over a presidential veto. Treaties must be approved by a vote
of “two-thirds of the Senators present.... ” Art. II, § 2, cl. 2. It requires a vote of “two-thirds
of both Houses” to propose amendments to the Constitution. Art. V. To remove the
disability imposed on persons who have engaged in rebellion or insurrection requires a vote
of two thirds of each House. Amend. XIV, § 3. And to determine that the President remains
unable to discharge the powers and duties of his office requires a two thirds vote of both
Houses. Amend. XXV. Furthermore, in the event that a presidential election is decided in
the House, a quorum is to consist of a Member or Members from two thirds of the states.
Amend. XII. Likewise, two-thirds of the Senate constitutes a quorum for choosing a Vice
President. Id.
12Riddick, S. Doc. No. 101-28, at 912. “There is no rule providing for consideration of
business by a majority vote, but precedents of the Senate have been uniform in that respect.”
Id. The House, in most instances, also operates by majority rule. Jefferson’s Manual, which
is followed by the House (see House Rule XXVIII), states: “The voice of the majority
decides.... ” Jefferson’s Manual, § XLI, reprinted in Constitution, Jefferson’s Manual, and
Rules of the House of Representatives — One Hundred Eighth Congress
, H. Doc. No. 107-
(continued...)

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The Supreme Court has found that “the general rule of all parliamentary bodies
is that, when a quorum is present, the act of a majority of the quorum is the act of the
body,” except when there is a specific constitutional limitation.13 However, the Court
has also found that the Constitution, history, and judicial precedents do not require
that a majority prevail on all issues.14
Does the commitment of the framers to majority rule as a general principle, the
fact that the Senate usually operates pursuant to majority rule, and the enumeration
in the Constitution of certain extraordinary majority voting requirements mean that
any exception to majority rule other than the enumerated ones is unconstitutional?
Is there any constitutional defense to be offered for a Senate filibuster?
Rulemaking Authority
Article I, Section 5, clause 2, of the Constitution authorizes “each House [to]
determine the rules of its proceedings.... ”15 The rule-making power has been
construed broadly by the courts.16 It has been argued that the rule-making power and
12(...continued)
284, 107th Cong., 2d Sess. § 508 (2003).
Pursuant to their rulemaking authority (see infra text accompanying note 15), both the
House and the Senate have adopted rules (in addition to the cloture rule) that impose
extraordinary majority requirements in certain circumstances. For example, House rules
require a two-thirds vote to suspend the rules (Rule XV, cl. 1) and a three-fifths vote to
approve a measure, amendment, or conference report carrying a federal income tax rate
increase (Rule XXI, cl. 5(b)). Also for example, Senate rules require a two-thirds vote to
make a subject a special order of business (Rule X) and to agree to a motion to postpone
indefinitely consideration of a treaty (Rule XXX, par. 1(d)).
13United States v. Ballin, 144 U.S. 1, 6 (1892).
14See Gordon v. Lance, 403 U.S. 1, 12 (1971) (no federal constitutional bar to state
constitutional and statutory provisions requiring approval by 60 percent of the voters in
referendum election).
15“The standing rules of the Senate may be amended by a majority vote.... ” Riddick, S.
Doc. No. 101-28, at 1219.
16In Ballin, 144 U.S. at 5, the Court noted: “The Constitution empowers each House to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints or
violate fundamental rights.... ”
Recent exercises of the rule-making power by the House in regard to voting requirements
have been challenged in court. See Skaggs v. Carle, 110 F.3d 831 (D.C.Cir. 1997) (holding
that plaintiffs lacked standing to challenge House rule that requires three-fifths majority vote
for bills carrying an income tax rate increase); Michel v. Anderson, 14 F.3d 623 (D.C.Cir.
1994)(upholding House rules change that authorized Delegates to the House to vote in
Committee of the Whole, notwithstanding claims by plaintiff Members of vote dilution,
because Delegates’ votes were not decisive).

CRS-5
historical practice are the foundation for the filibuster,17 and that Article I, Section 5,
permits the Senate to adopt procedures unless they conflict with a constitutional
prohibition. Supporters of the filibuster have contended that Senate rules are not in
conflict with the Constitution because the rules require 60 votes to end debate on a
nomination, not to confirm a nominee,18 and that therefore the Senate rules are not
unconstitutional because they are not at odds with the few constitutional provisions
in which the framers specified a particular type of majority. Opponents of the
filibuster have claimed that Senate rules violate the constitutional principle of
majority rule and in effect impose an extraordinary majority requirement for
confirmation of nominees that is at odds with the Appointments Clause.19
Entrenchment
Several factors have the effect of entrenching20 the filibuster. First, Senate Rule
XXII, par. 2 (the cloture rule) applies, inter alia, to amendments to the Senate rules.
(A vote of three fifths of the entire Senate is usually required to invoke cloture. A
vote of two thirds of the Senators present and voting is required to invoke cloture on
a measure or motion to amend the Senate rules.) Second, Senate Rule V, par. 2,
provides that “the rules of the Senate shall continue from one Congress to the next
Congress unless they are changed as provided in these rules.” And third, because the
Senate is a continuing body,21 its rules “are not newly adopted with each new session
of Congress.”22
Because the cloture rule may be applied to debate on a proposal to change the
filibuster rule, it has been argued that the filibuster rule unconstitutionally interferes
with the right of a majority to exercise the constitutional rulemaking authority23 by
17See Judiciary Committee Hearing, supra note 1 (testimony of Professor Michael
Gerhardt); Fisk and Chemerinsky, supra note 7, at 240-41.
18See Judiciary Committee Hearing, supra note 1(testimony of Professor Michael Gerhardt).
19See Judiciary Committee Hearing, supra note 1(testimony of Dean Douglas Kmiec). Cf.
id
. (testimony of Professor Steven Calabresi).
20“Entrenchment” has been defined as “the enactment of either statutes or internal legislative
rules that are binding against subsequent legislative action in the same form.” Posner and
Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L.J. 1665, 1667 (2002).
21The courts (see McGrain v. Daugherty, 273 U.S. 135, 181 (1927)) and the Senate itself
(see Fisk and Chemerinsky, supra note 7, at 245) consider the Senate to be a continuing
body because two thirds of the membership continues into the next Congress.
22Fisk and Chemerinsky, supra note 7, at 245.
23“ ...[T]he entrenchment of the filibuster violates a fundamental constitutional principle:
One legislature cannot bind subsequent legislatures.” Fisk and Chemerinsky, supra note 7,
at 247. It has also been argued that “popular sovereignty is frustrated when one session of
the legislature can prevent or limit action by future sessions.” Id. at 248. See also id. at 250.
Similarly, it has been suggested that entrenchment interferes with “the right of the electorate
to rule according to its will.” Id.

CRS-6
majority vote.24 However, supporters of the filibuster have contended that “there is
no constitutional directive against entrenchment,”25 and that the reference to “each
House” in the rule-making clause (Article I, Section 5), authorizing each House to
“determine the rules of its proceedings,” means the House and Senate separately (not
the Congress), and does not mean that one session of the Senate is barred from
binding the next session.26
The entrenchment issue has given rise to a suggested scenario under which a
simple majority might vote in favor of an amendment to the filibuster rule, a point
of order might be raised asserting that a majority vote is sufficient to cut off debate
on the amendment and to pass it (because the two-thirds requirement is
unconstitutional), the matter would be referred by the Vice President to the Senate,
and the point of order would be sustained by a simple majority of the Senate. A
judicial appeal might ensue.27
24See id. at 210
25Judiciary Committee Hearing, supra note 1(testimony of Professor Michael Gerhardt).
It has also been argued that “neither the future legislative majority nor the underlying
electorate has any general ‘right ... to rule according to its will.’” Posner and Vermeule,
supra note 20, at 1695.
26See Posner and Vermeule, supra note 20, at 1676.
27The scenario was suggested in Cutler, The Way to Kill Senate Rule XXII, Washington Post,
Apr.19, 1993, at p. A23. See generally “Revision of Senate Rules at the Opening of a New
Congress,” Dec. 20, 1966, memorandum of the American Law Division, Library of
Congress, reprinted in 113 Cong. Rec. 1278-79 (1967) (analysis of procedures concerning
resolution of question of constitutional right of majority to terminate debate on amendment
of Rule XXII).
For a discussion of recent proposed amendments to the filibuster rule, see Dewar and
Allen, Frist Seeks to End Nominees Impasse, Washington Post, May 9, 2003, at p. A12. On
June 24, 2003, the Senate Committee on Rules and Administration reported S. Res. 138,
108th Cong., a measure that would gradually reduce the number of votes needed for cloture
on presidential nominations from 60 to 51. See generally Cochran, Senators Uneasy With
Proposal to Alter Filibuster Rule on Judicial Nominations
, 61 Cong. Qtly. 1605 (2003).
If the Senate rules are not amended, the “nuclear” option might be employed. As outlined
in various press accounts, a Senator would raise a constitutional point of order (arguing that
a super-majority requirement for confirmation of a judicial nominee is unconstitutional), the
point of order would be sustained by the Vice President, presiding over the Senate, and his
ruling would be affirmed by a simple majority of the Senate. See, e.g., Ornstein, GOP
Should Handle Filibusters the Old-Fashioned Way
, Roll Call, Nov. 17, 2004. The option
is characterized as “nuclear” because of its potential to destroy comity. See generally
Dewar, GOP Votes to Break Nominee Filibusters, Washington Post, June 25, 2003, at p.
A21; CRS Report RL32684, Changing Senate Rules: The “Constitutional” or “Nuclear”
Option
, by Betsy Palmer.

CRS-7
The Senate, the President, and Judicial
Appointments
The filibuster of a judicial nomination raises constitutional issues, particularly
separation of powers ones, not posed by the filibuster of legislation.28 These issues
should be considered in light of the pertinent language of the Constitution and the
intent of the Framers.29
The Appointments Clause provides that the President “shall nominate, and by
and with the Advice and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court, and all other Officers of
the United States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law.... ”30 There are three stages in presidential
appointments by the President with the advice and consent of the Senate. First, the
President nominates the candidate. Second, the President and the Senate appoint the
individual. And third, the President commissions the officer.31
The Text. It is noted that the Appointments Clause is in Article II of the
Constitution, which sets forth the powers of the President.32 The power of
appointment is one of the executive powers of government.33 “... [T]he power of
appointment by the Executive is restricted in its exercise by the provision that the
Senate, a part of the legislative branch of the Government, may check the action of
the Executive by rejecting the officers he selects.”34
28See Proposals to Amend Senate Rule XXII, Hearing before the Senate Committee on Rules,
108th Cong., 1st Sess. (2003) [hereinafter, Rules Committee Hearing] (available in LEXIS,
Legis Library, Congressional Testimony File) (testimony of Professor John Eastman).
29Cf. Gauch, The Intended Role of the Senate in Supreme Court Appointments, 56 U. Chi.
L. Rev. 337, 339 (1989).
30The Constitution further provides, in Art. II, § 3, that the President is to “Commission all
the Officers of the United States.”
31 The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No.
103-6, 103rd Cong., 1st Sess. 519 (1996). Chief Justice Marshall, in Marbury v. Madison,
5 U.S. (1 Cr.) 137, 155 (1803), in dicta in a ruling on an appointee’s alleged right to a
commission, described the appointment as “the act of the President,” which “can only be
performed by and with the advice and consent of the Senate.” “Marshall’s statement that
the appointment ‘is the act of the President,’ conflicts with the more generally held and
sensible view that when an appointment is made with its consent, the Senate shares the
appointing power.” S. Doc. No. 103-6, at 519, citing 3 Story, Commentaries on the
Constitution of the United States
1525 (1833); In re Hennen, 38 U.S. (13 Pet.) 230, 259
(1839). In dicta in Hennen, a case involving the removal of a federal district court clerk, the
Court made reference to “officers appointed with the concurrence of the Senate” (38 U.S.
at 259) and to “the appointment of the officer ... by the President and the Senate.” Id.
32See Rules Committee Hearing, supra note 28 (testimony of Professor John Eastman).
33See Myers v. United States, 272 U.S. 52, 163-64 (1926).
34Id. at 119.

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The language of the Appointments Clause is ambiguous.35 It does not specify
procedures or time limits applicable in confirmation proceedings, and it does not
require that the Senate take a final vote on a nomination.36
The Framers’ Intent. “There is little evidence indicating the exact meaning
of ‘advice and consent’ intended by the Framers.... Records of the constitutional
debates reveal that the Framers, after lengthy discussions, settled on a judicial
selection process that would involve both the Senate and the President. This
important governmental function, like many others, was divided among coequal
branches to protect against the concentration of power in one branch.”37 The Senate’s
role of advice and consent was intended as a safeguard against executive abuses of
the appointment power.38
The Arguments of Supporters and Critics of Filibusters of Judicial
Nominations. Citing the language of the Appointments Clause and the intent of
the Framers, supporters and critics of filibusters of judicial nominations disagree
about the relative roles of the President and the Senate in regard to judicial
appointments,39 about whether the Senate has a duty to dispose of the President’s
judicial nominations in a timely fashion,40 and about whether a majority of Senators
has a constitutional right to vote on a nomination.41
35See Gauch, supra note 29, at 339. However, it is clear that “the Senate’s power ... does not
extend to the nomination itself.” Id.
36See Rules Committee Hearing, supra note 28 (testimony of Professor Michael Gerhardt).
37Renzin, Advice, Consent, and Senate Inaction — Is Judicial Resolution Possible?, 73
N.Y.U.L. Rev. 1739, 1753-54 (1988).
38See Edmond v. United States, 520 U.S. 651, 659 (1997). The advice and consent function
of the Senate (in which all states are represented equally) was added as a restriction on the
President’s appointment power at the urging of the smaller states, which were concerned
that the President, elected by the electoral college (in which the influence of the larger states
would be greater than that of the smaller states), might make too many appointments from
the larger states. See Myers, 272 U.S. at 110-11, 119-20.
39 Compare Judiciary Committee Hearing, supra note 1 (testimony of Marcia Greenberger)
(Constitution gives Senate and President equal roles in determining composition of federal
courts) and Rules Committee Hearing, supra note 28 (testimony of Professor Michael
Gerhardt) (same) with Judiciary Committee Hearing, supra note 1 (testimony of Professor
Steven Calabresi) (power of appointment is “inherently executive”).
40Compare Rules Committee Hearing, supra note 28 (testimony of Professor Michael
Gerhardt) (Constitution specifies no time limits for the consideration of nominations) with
Rules Committee Hearing
, supra note 28 (testimony of Professor Douglas Kmiec) (by not
timely disposing of nominations for judgeships, the Senate affects responsibilities of judicial
branch) and Renzin, supra note 37, at 1757 (“slowdown” by Senate in acting on judicial
nominations disrupts judiciary).
For statistical information, see CRS Rept. CRS Report RS20801, Cloture Attempts on
Nominations
, by Richard S. Beth.
41Compare Judiciary Committee Hearing, supra note 1 (testimony of Honorable Russ
Feingold) and Klain, Frivolous Suits and Judicial Activism from the Political Right?, Roll
(continued...)

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Recess Appointments. If the Senate filibusters a judicial nomination, the
President has “countervailing powers,” including the ability to make a recess
appointment,42 which does not require Senate confirmation but which is only
temporary, expiring at the end of the next session of Congress.43 Because recess
appointments deny the Senate the opportunity to consider the appointees, they raise
separation of powers questions about the roles of the President and the Senate in the
appointments process.44 Special issues are raised by recess appointments of Article
III judges.45 The independence of such judges is generally guaranteed by their life
tenure.46 However, “a recess appointee lacks life tenure.... As a result, such an
appointee is in theory subject to greater political pressure than a judge whose
nomination has been confirmed.”47
41(...continued)
Call, June 4, 2003, at p. 4 (Art. II, § 2 vests confirmation power in “the Senate,” not in
majority of Senators) with Judiciary Committee Hearing, supra note 1 (testimony of
Professor John Eastman).
42Rules Committee Hearing, supra note 28 (testimony of Professor John Eastman). See also
id
. (testimony of Professor Douglas Kmiec).
43The Recess Appointments Clause provides that “the President shall have power to fill up
all vacancies that may happen during the recess of the Senate, by granting commissions
which shall expire at the end of their next session.” Art. II, § 2, cl. 3.
44See generally Fisher, Constitutional Conflicts between Congress and the President, at 38-
43 (1997).
President Bush used his recess appointment authority to appoint Charles Pickering and
William Pryor to judgeships. Bush’s previous nominations of Pickering and Pryor had been
blocked by filibusters. The President’s use of his recess appoint authority precipitated a
conflict with some Senators, who responded by delaying action on all of the President’s
judicial nominations. The impasse ended when the President agreed not to use his recess
appointment authority for judicial nominees during the remainder of his first term in office
in return for Senate action on specified judicial nominations. Dewar, President, Senate
Reach Pact on Judicial Nominations
, Washington Post, May 19, 2004, at p. A21.
45See generally CRS Report RL31112, Recess Appointments of Federal Judges, by Louis
Fisher. The constitutionality of such appointments has been upheld recently on the basis of
the text of the Constitution and on historical practice. See Evans v. Stephens, 387 F.3d 1220
(11th Cir. 2004) (en banc). See also United States v. Woodley, 751 F.2d 1008, 1014 (9th Cir.
1985) (en banc), cert. denied, 475 U.S. 1048 (1986). The ruling in Woodley was based in
part on an “historical review,” which demonstrated “an unbroken acceptance of the
President’s use of the recess power to appoint federal judges” by all three branches. 751
F.2d at 1011. In 1789, President Washington made the first judicial recess appointment.
Id. From 1789 until 1985, when Woodley was decided, about 300 judicial recess
appointments were made, including several such appointments of Justices of the Supreme
Court. Id.
46Federal judges “hold their offices during good behaviour” (Art. III, § 1), but can be
impeached.
47Woodley, 751 F.2d at 1014. “A judge ... who is given a recess appointment may be
‘removed’ by the Senate’s failure to advise and consent to his appointment; moreover, on
the bench, prior to Senate confirmation, she may be subject to influence not felt by other
(continued...)

CRS-10
Appeal to the Courts
The constitutionality of the filibuster has been challenged in court,48 and such
litigation raises justiciability issues.49 In a number of cases, the courts have shown
a reluctance to interpret the rules of either House50 or to review challenges to the
application of such rules.51 However, the case law is not entirely consistent,52 and it
has been suggested that a court will be more likely to reach the merits if a rule has an
impact on parties outside the legislative sphere.53 Standing and the political question
doctrine would be the primary justiciability issues raised by a court challenge to the
filibuster rule.54
47(...continued)
judges.” The Constitution of the United States of America: Analysis and Interpretation, S.
Doc. No. 103-6, 103rd Cong., 1st Sess. 522 (1996).
48Judicial Watch, Inc. v. United States Senate, No. 1:03CV01066(CKK), 2004 U.S. Dist.
LEXIS 20032 (D.D.C. Oct. 6, 2004); Page v. Shelby, 995 F. Supp. 23 (D.D.C.), aff’d, 172
F.3d 920 (D.C.Cir. 1998) (see infra note 57). Cf. Raiser v. Daschle, 2002 U.S. App. LEXIS
27282 (10th Cir. 2002) (affirming dismissal, due to lack of standing, of suit challenging
Senate procedures that permit Judiciary Committee to bar full Senate from voting on
nomination by failing to report the nomination to the Senate), cert. denied, 539 U.S. 903
(2003).
49Under Article III, the judicial power is limited to “cases” and “controversies.”
“‘Justiciability’ is the term of art employed to give expression to ... [the] limitation placed
upon federal courts by the case-and-controversy doctrine.” Flast v. Cohen, 392 U.S. 83, 94
(1968).
50See, e.g., Vander Jagt v. O’Neill, 699 F.2d 1166, 1172-73 (D.C. Cir.), cert. denied, 464
U.S. 823 (1983).
51See, e.g., Consumers Union of United States, Inc. v. Periodical Correspondents’
Association
, 515 F.2d 1341 (D.C.Cir. 1975), cert. denied, 423 U.S. 1051 (1976).
52See Miller, The Justiciability of Legislative Rules and the “Political” Political Question
Doctrine
, 78 Cal. L. Rev. 1341 (1990). “Normally, the courts will not interfere with the
internal procedures of a co-equal branch, but there are exceptions.... ” Judiciary Committee
Hearing
, supra note 1 (testimony of Professor John Eastman).
53Deschler’s Precedents of the U.S. House of Representatives, ch. 5, § 4, at p. 309 (1977).
See also United States v. Smith, 286 U.S. 6, 49 (1932).
54If Senators were named as defendants, another procedural issue — that of immunity under
the Speech or Debate Clause (Article I, Section 6, clause 1) — would be raised. See Fisk
and Chemerinsky, supra note 7, at 238. See generally CRS Rept. CRS Report RL30843,
Speech or Debate Clause Constitutional Immunity: An Overview
, by Jay R. Shampansky.
Although the clause might bar a suit, perhaps seeking declaratory or injunctive relief,
naming Senators as defendants (see Eastland v. United States Servicemen’s Fund, 421 U.S.
491, 503 (1975)), it has been suggested that the clause might not preclude an action naming
a Senate employee (such as the Secretary of the Senate) as the defendant. Fisk and
Chemerinsky, supra note 7, at 238. See also Powell v. McCormack, 395 U.S. 486, 503-06
(1969).

CRS-11
Standing
Standing is a threshold procedural question which turns not on the merits of the
plaintiff’s complaint but rather on whether he has a legal right to a judicial
determination of the issues he raises.55 To satisfy constitutional standing
requirements, “‘[a] plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed by the requested
relief.’”56
It has been suggested that those who might have standing to challenge the rule
would include a judicial nominee not confirmed because of a filibuster; the President;
and Senators who are part of a majority in favor of a nomination, but who cannot
obtain the necessary votes to invoke cloture or to change the filibuster rule, who
might allege a dilution of their voting strength.57 A nominee might have suffered a
personal injury, caused by a filibuster, which might be remedied if the filibuster were
declared unconstitutional.58
The standing of the President and of Senators raises more difficult questions
than does the standing of a nominee. In Raines v. Byrd,59 the Court reviewed
historical practice and concluded that constitutional disputes between the branches
have generally not been resolved by the judiciary in cases brought by Members of
Congress or presidents.60 Because the constitutionality of the filibuster is an issue in
contention between the branches, the courts, applying Raines, might not accord
standing to Senators or President Bush.
55See Flast v. Cohen, 392 U.S. 83, 99 (1968).
56Department of Commerce v. United States House of Representatives, 525 U.S. 316, 329
(1999), quoting Allen v. Wright, 468 U.S. 737, 751 (1984).
57See Judiciary Committee, supra note 1 (testimony of Professor John Eastman). See also
Fisk and Chemerinsky, supra note 7, at 233-34, 236; Michel v. Anderson, 14 F.3d 623
(D.C.Cir. 1994)(vote dilution as basis of standing).
Neither a citizen (Page v. Shelby, 995 F. Supp. 23 (D.D.C.), aff’d, 172 F.3d 920 (D.C.Cir.
1998)) nor a public interest group (Judicial Watch, Inc. v. United States Senate, No.
1:03CV01066(CKK), 2004 U.S. Dist. LEXIS 20032 (D.D.C. Oct. 6, 2004)) has standing to
challenge the filibuster rule. In Judicial Watch, the plaintiff argued that the failure of the
Senate to vote on pending judicial nominations resulted in vacancies on two appellate courts
that delayed the resolution of plaintiff’s appeals pending in those courts, thereby injuring
plaintiff. Id., 2004 U.S. Dist. LEXIS 20032, at *4. The court dismissed the suit because the
plaintiff could not satisfy the constitutional elements of the law of standing and because the
court found that separation of powers concerns would be raised by judicial involvement in
Senate rules and practices. Id. at *2, 35.
58See Fisk and Chemerinsky, supra note 7, at 233-34.
59521 U.S. 811 (1997).
60Id. at 826-28. But cf. United States v. Smith, 286 U.S. 6 (1932) (Court interpreted Senate
rule concerning nominations in suit brought by executive branch at request of Senate).
(Smith was not cited by the Court in Raines.)

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Other issues, under Raines, arise in regard to the standing of Senators.61 Under
Raines, to challenge executive branch action or the constitutionality of a public law,
a Member must assert a personal injury or an institutional injury amounting to
nullification of a particular vote.62 In regard to the filibuster dispute, it is
questionable whether a Senator has suffered either a personal injury63 or an
institutional one that has the effect of nullifying a particular vote. Under Raines, the
availability of some means of legislative redress precludes a finding of nullification,64
and a court might find that the possibility of amending the filibuster rule is a means
of legislative redress, even though a proposed amendment to the rule could itself be
the subject of a filibuster.
Political Question
Judicial review is not available where the matter is considered to be a political
question within the province of the executive or legislative branch.65 “Prominent on
the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; ... or the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of government.... ”66
The rule-making clause (Article I, Section 5, clause 2) is a textual commitment
of authority to each House to make and interpret its own rules of proceedings.67
Notwithstanding this textual commitment, the political question doctrine will not
61Raines was a suit filed by congressional plaintiffs against officials of the executive branch.
See 521 U.S. at 815. A suit raising the question of the constitutionality of the filibuster
might be filed by congressional plaintiffs against congressional defendants. The standing
test adopted in Raines might be applied in a suit involving congressional plaintiffs and
defendants. The Raines test was based on separation of powers concerns about the limited
role of the courts. See id. at 828. Similar separation of powers concerns are raised in suits
by Members against their colleagues. See Moore v. U.S. House of Representatives, 733 F.2d
946, 951 (D.C.Cir. 1984), cert. denied, 469 U.S. 1106 (1985).
62See 521 U.S. at 818-20, 821-24, 826.
63The majority in Raines considered an injury to a legislator’s voting power to be an official
injury. See id. at 821.
64See id. at 824. See also Campbell v. Clinton, 203 F.3d 19, 22-24 (D.C. Cir.), cert. denied,
531 U.S. 815 (2000); Arend & Lotrionte, Congress Goes to Court: The Past, Present, and
Future of Legislator Standing
, 25 Harv. J.L. & Pub. Pol’y 209, 282 (2001) (“there will
virtually always be some legislative remedies available”).
65Baker v. Carr, 369 U.S. 186, 217 (1962). Even in a case that presents a political question,
“deciding whether a matter has in any measure been committed by the Constitution to
another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional interpretation”
which is a judicial function. Id. at 210-11.
66Id. at 217.
67United States v. Ballin, 144 U.S. 1, 5 (1892). See also Miller, supra note 52, at 1348-49.

CRS-13
preclude judicial review where there is a constitutional limitation imposed on the
exercise of the authority at issue by the political branch.68
It might be argued that the political question doctrine bars judicial review of the
constitutionality of the filibuster rule because the rulemaking clause permits the
Senate to make its own rules, and the Constitution does not expressly limit debate.69
On the other hand, it might be argued that the political question doctrine does not
preclude judicial review because the exercise of the rulemaking power is restricted
since the entrenchment of the filibuster may be at odds with “constitutional principles
limiting the ability of one Congress to bind another.”70
Conclusion
The question of the constitutionality of the Senate filibuster of a judicial
nomination has divided scholars and has not been addressed directly in any court
ruling. The constitutionality of the filibuster of a judicial nomination turns on an
assessment of whether the Senate’s power to make rules governing its own
proceedings is broad enough to apply the filibuster rule to nominations. Supporters
and critics of the filibuster of judicial nominations disagree about the relative roles
of the President and the Senate in regard to judicial appointments, about whether the
Senate has a duty to dispose of the President’s judicial nominations in a timely
fashion, and about whether a simple majority of Senators has a constitutional right
to proceed to a vote on a nomination. The constitutionality of the filibuster might be
challenged in court, but it is uncertain whether such an action would be justiciable.
68Compare Powell v. McCormack, 395 U.S. 486, 518-49 (1969) (Court reached merits after
finding that power of House to judge elections, returns, and qualifications of its Members
restricts House to qualifications specified in Constitution) with Nixon v. United States, 506
U.S. 224, 237 (1993) (issue of whether Senate could delegate to a committee the task of
taking testimony in an impeachment case presented political question in light of
constitutional provision giving Senate “sole power to try impeachments”; Court found “no
separate provision of the Constitution which could be defeated by allowing the Senate final
authority to determine the meaning of the word ‘try’ in the Impeachment Trial Clause”).
69See Fisk and Chemerinsky, supra note 7, at 229.
70Id. at 230.