Filibustering Judicial Nominees

The U.S. Constitution gives the U.S. Senate the power of “advice and consent” on the President’s appointments of judicial nominees. This means that each U.S. senator has the right to tell the President how he or she feels about judicial nominees (which refers to the “advice” power in the Constitution) and each U.S. senator has the power to vote for or against the President’s judicial nominees (which refers to the “consent” power in the Constitution). There’s no evidence to suggest that the Framers of the Constitution ever intended for one senator or a minority of senators to be able to prevent a full vote of the Senate on a President’s judicial nominees. Yes, one of the guiding principles of American representative democracy is the minority has rights but the will of the majority rules. The will of the majority cannot rule when a minority of senators filibuster a judicial nominee. When a minority of senators uses filibusters to block the will of the majority, we experience a tyranny of the minority.

Any U.S. President should have the right to have his or her judicial nominees receive a simple up or down vote on the Senate floor. If a senator does not want to support a judicial nominee, then let him or her vote against the nominee. A senator should never prevent other senators from voting for or against a judicial nominee by engaging in a filibuster.

We should never eliminate the filibuster. However, the American people should vote out any senator who exercises a filibuster on a judicial nominee. When you use a filibuster on a judicial nominee, you stop the voice of the entire body of the Senate from being heard. You keep the will of the widely elected President from even being considered, which stops at least a simple majority of the American voters from being heard.  Vote a judicial nominee up or vote a judicial nominee down but do give a nominee a fair up or down vote on the Senate floor.

Democrats and Republicans are both guilty of using filibusters to blockade a President’s judicial nominees from receiving an up or down vote on the Senate floor. Elections matter! When the President is duly elected by the American people, the President deserves to have his or her judicial nominees get a vote on the Senate floor. The American people voted for the President with his or her judicial philosophy in mind and with an understanding of the type of people he or she would nominate. The people who voted for the President deserve to have all of the President’s judicial nominees receive an up or down vote.

Filibusters often occur when there are judicial vacancies, resulting in judicial emergencies. A judicial emergency occurs when there are not enough judges on a specific court for the court to function properly. These judicial emergencies result in people not having their cases heard. Justice delayed is justice denied. The Courts are an integral part of our representative democracy. When senators employ meaningless political games just to curry favor with special interests groups and to satisfy their own selfish interests and ideologies, we need to vote them out of office.

It’s okay to be conservative, liberal, moderate, Republican, Democrat, or Independent, but it’s not okay for you to be a duly elected U.S. senator and be anti-democratic. Delaying and denying justice through the use of filibusters is anti-democratic. Again, elections matter! Give every U.S. President’s judicial nominees an up or down vote on the Senate floor.

Antonio Maurice Daniels

University of Wisconsin-Madison

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