Wachtel Lipton partner Michael Schwartz delineates the constitutional illegitimacy of the filibuster applied to judicial nominees while supporting the filibuster for legislative purposes: “The ‘plain language’ of appointing judges.” Schwart’s reading of the Constitution to support his point on the illegitimacy of its current use by the Democrats is compelling.
Schwartz expresses concern, however, that enacting limitations on the filibuster for judicial nominees threatens its legitimacy when used appropriately for legislative purposes. I think of the Hillarycare monstrosity that the Senate debated up to adjournment in the fall of 1994 as a case illustrating the desirability of the Senate’s deliberative procedures, including the filibuster as a last resort.
Schwartz asks that the White House and the Senate leadership unilaterally enforce the plain reading of the constitutional text that precludes the requirement of a senatorial supermajority for judicial nominees. But here his column goes silent. How can the president and Senate leadership get the president’s nominees to a floor vote unilaterally?
UPDATE: Michael Schwartz has kindly responded to my question:
Thanks so much for linking to my piece on the judiciary/filibuster situation. As to the question raised in your third paragraph, I didn’t intend to “go silent,” but should have been clearer. All the Constitution requires is “consent,” not necessarily a “floor vote.” I suppose 51 Senators could stand up and say “I consent,” and that would do it. My example of a failed vote on cloture is another mechanism, perhaps accompanied by a statement of the 51+ yes voters that, if the question were on the merits, they’d vote yes.