Abstract
The Senate must not allow the partisan political objective of the moment to subvert fundamental principles that define our form of government and the institution of the Senate itself. As politically contentious or ideologically divisive as judicial confirmations can sometimes be, they must nonetheless be handled through a process that is fair and honors the Constitution. If the fight is fair and constitutional, let the chips fall where they may. The current filibuster campaign against majority-supported judicial nominations is the latest weapon in the ongoing conflict over the kind of judge that should be appointed. That conflict is between process-focused restrained judges that allow the people and their elected representatives to make law, and results-focused activist judges who make law for the people. The filibuster campaign also represents yet another imbalance between the minority's right to debate and the majority's right to decide. In this case, however, targeting majority-supported judicial nominations has serious constitutional as well as political dimensions, making the case for reform all the more compelling.35 ° Indeed, it is this new and unconstitutional filibuster, and not its solution, that "strike[s] a blow to chamber tradition" 351 and "throw[s] out 200 years of Senate history and tradition. To quote Senator Daschle: "They have broken the process and we want to fix it."
Recommended Citation
2005 ULR 803 (2005)