Peter Levine

The Constitution famously says, "The President ... 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." "Consent" means a decision, and collective decisions require a rule. Senator Frist believes that the rule ought to be what he calls an "up-or-down-vote," but he really means a vote scheduled for a particular time, in which, if a quorum is present, a majority of those voting shall prevail. This rule is not specified in the Constitution, and it is only one rule used by legislative and other constitutional bodies. The Senate often uses the rule that Senator Frist opposes, which is to decide by majority vote of those present, but only if 60 senators are willing to allow the vote to proceed. In general, the decision-rule in Congress is a concurrent majority vote in both houses; and committees determine what is voted on. To propose a constitutional amendment requires the support of "two thirds of both Houses." Criminal juries (which are also constitutional bodies) normally require unanimity to convict.

Any decision-rule has its advantages and disadvantages. The status quo in the Senate, which allows filibusters, may favor moderate judicial appointments. I think this is good; a lifetime appointment to a co-equal branch of government should be able to pass muster with 60 Senators. In contrast, simple majority voting would allow a party to place its own partisans on the bench if it controlled both the White House and the Senate. There are also disadvantages to the current filibuster rule. But I don't see how any rule is more constitutional than any other. It would be consistent with the Constitution (although unwise) for the Senate to demand unanimity on judicial appointments.

The Constitution mentions "advice" as well as "consent." I have long felt that the spirit of this provision would be met if the president and the Senate conferred prior to a nomination. Thus I believe the Senate should propose, and the president should seriously consider, a list of possible judges and justices and a set of criteria for their selection. But no president has welcomed such true "advice."

In the absence of prior advice, presumably the spirit of the Constitution requires at least serious communication between the Senate as a body and the president. The Senate ("the world's greatest debating society") communicates best by allowing everyone to speak. Thus, arguably, the filibuster advances the constitutional requirement to "advise" by promoting debate.

However, if we make this argument (and I find it appealing), then the minority should block presidential nominations only by spending time actually debating the merits of a nominee and closely related issues. In other words, the minority should have the right to exercise an old-fashioned filibuster, which is a talkathon on the subject of the controversy. (In contrast, in modern filibusters, the Senate moves to other business until 60 votes can be mustered to end debate.) The advantage of a genuine, old-fashioned filibuster is that citizens can observe the debate and decide for themselves whether the delay is merited.