The Foundations of Advice & Consent: Original Intent & the Judicial Filibuster

Journal of Law and Politics: Vol. XXXI, no. 3 (2016): 297-331


This article examines three recent critiques of the judicial filibuster based on original intent. Such an examination suggests that arguments against the constitutionality of the judicial filibuster are dependent on flawed understandings of the Appointments Clause, the doctrine of separation of powers, and the principle of majority rule as it relates to the Constitution. Moreover, such arguments presume a degree of senatorial deference to the President in the confirmation process that stands in stark contrast to long-standing Senate practice. Basing the case for eliminating the filibuster for judicial nominations on constitutional or on republican grounds inadvertently undermines the doctrine of separation of powers, the independence of the judiciary, and calls into question the legitimacy of other established institutions in the Senate such as the committee system, the agenda-setting function of the majority party, and ultimately the legislative filibuster.