11/22/2013 03:53 pm ET Updated Jan 25, 2014

A Constitutional -- Not a Nuclear -- End to Confirmation Filibusters

With a simple-majority vote, the Senate acted to end the unconstitutional practice of allowing a Senate minority to keep critically important executive and judicial posts vacant for months and years. The Senate invoked a constitutional option -- not a "nuclear" one -- to end the 60-vote threshold required to end confirmation filibusters. The Senate action is a return to the constitutional governance of the Framers' design -- there is nothing "nuclear" about simple-majority votes.

Framers Intended Simple-Majority Confirmation Votes

The super-majority vote design of the Articles of Confederation failed badly. Thus the Delegates to the 1787 Constitutional Convention explicitly rejected general super-majority vote requirements for the Republic's second constitution. The Framers allowed only five explicit exceptions to Senate simple-majority rule: expelling members, ratifying treaties, overriding presidential vetoes, convicting on impeachments, and proposing constitutional amendments. Pursuant to Article II, Section 2, Clause 2, the Senate's advisory-consent votes are to be simple-majority votes. The Senate's job is to timely "ratify or reject" the Executive's choice of nominees by simple-majority confirmation votes.

James Madison, in Federalist 58, explains that a general super-majority vote requirement reverses "the fundamental principle of government... It would be no longer the majority that would rule: the power would be transferred to the minority." Madison wisely warned that such a minority might abuse the power to "extort unreasonable indulgences." And, in Federalist 22, Alexander Hamilton described how a super-majority requirement distorts governance as "the smaller number will overrule that of the greater." Hamilton further explained a super-majority vote requirement "[in] its real operation," has potential to be used by the few to "embarrass the administration . . . destroy the energy of government," and hold governance hostage to the "caprice or artifices of an insignificant, turbulent, or corrupt junto." Hamilton was unreserved in his warning about a minority faction causing "tedious delays; continual negotiation and intrigue; contemptible compromises of the public good."

As if prescient of the unprecedented obstruction of our present "uncompromising" Tea Party age, Hamilton warned that super-majority vote requirements can ultimately lead to anarchy:

And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

A rich legal and policy literature has developed to expose the tainted history of the Senate filibuster and the unconstitutional super-majority operation of the cloture rule. Emmet Bondurant's 2011 Harvard Journal of Legislation work is the best of such works, and briefs six ways that filibusters are unconstitutional.

Obstruction Becomes Nullification

A destructive cycle of confirmation obstruction and subsequent partisan payback has intensified with each of the past four presidencies. Chief Justice John Roberts captured the downward spiral: "Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes."

Partisan fury after the Supreme Court's 2000 Bush v. Gore presidential selection significantly worsened the obstruction cycle for George W. Bush's nominees. President Barack Obama entered the White House hoping to "move beyond" appointment conflict; instead, his nominees suffered treble-payback. Barack Obama, like other recent presidents, was forced to use recess appointments to keep basic government agencies functioning. Radical ideologues and extreme partisans then moved their obstruction to federal court fora. As President Obama stated shortly after the historic Senate vote, there has been a "deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the result of an election is not normal, and for the sake of future generations, we can't let it become normal."

"Time to Get the Senate Working"

All Senate confirmation hurdles, slow-walking, holds, and filibusters -- if terminated only by a super-majority cloture vote -- are unconstitutional. As I argued in a recent Supreme Court amicus brief supporting the president's recess appointment authority in NLRB v. Noel Canning (set to be argued at the high court on January 13 as the first case of 2014), the procedural obstruction is abhorrent to the constitutional order and must be ended.

My brief quotes Professor Edward Corwin's decades-old condemnation of the filibuster which "extorts special favors for its authors." Professor Corwin laments the "indefensible concessions which a small block of so-called 'Silver Senators' have been able to wrest." No longer the rarely- invoked prerogative of the few "Silver Senators," the modern silent filibuster is now as common as it is destructive. The unprecedented frequency of filibusters has made real Edward Corwin's concern as to whether the Senate was to "retain its intended purpose in the constitutional system." Edward S. Corwin, The President: Office and Powers 348 (1948).

Majority Leader Harry Reid has courageously made the first move to return to the Senate to its "intended purpose in the constitutional system." Harry Reid will forever be remembered along with other genuinely great upper chamber majority leaders. The Senate should soon end confirmation filibusters for Supreme Court nominees and move more quickly to end all legislative filibusters. As Harry Reid stated on November 21, 2013: "It is time to get the Senate working."

All it takes is a simple majority vote.

Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.