(This is an edited excerpt from an article that originally appeared on Scott Bradford: Off on a Tangent in 2013.)
Supporters of the Senate’s unusual filibuster rule characterize it as a way of protecting the minority party’s interests. Both parties have generally played along because they both recognize that a strong majority today could easily be a withered minority after the next election cycle. Putting up with the other guys’ obstructionism today gives you a license to be the obstructionists tomorrow. And although I don’t have any particular affinity for the filibuster myself, the U.S. Constitution gives each house in Congress the authority to make up its own rules…no matter how silly they might be (Article I, Section 5).
But the Senate cannot set rules that run afoul of its constitutional responsibilities. Oh sure, they can decide how they debate and consider bills, how they schedule their sessions, who sits where, how votes are counted, and so on. But they couldn’t create a rule saying that they’re only going to convene once every two years…because the U.S. Constitution says they have to assemble at least once per year (Article I, Section 4). They couldn’t create a rule that allows them to skip the counting of presidential electors…because they are required by the U.S. Constitution to participate in the counting, and select a vice president if none of the candidates has an electoral majority (Twelfth Amendment).
It follows, then, that the filibuster can be used to affect the scheduling (or lack thereof) of votes on particular bills, but it could not be used to skip-out on the Senate’s constitutionally-mandated roles in the operation of our government.
This is why I have been saying for years and years that the use of the filibuster with regard to presidential appointments is unconstitutional. Under the U.S. Constitution, Article II, Section 2, the President of the United States has the authority “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States….” The Senate can’t just say to the president that, oh, we’re not interested in providing you with any advice or consent for your nominees.
The Senate does, of course, have the right to vote down a nominee and force the president to make a new nomination. Fair enough. But it can’t just refuse to act on the nomination at all. The Senate has a constitutional duty, and their filibuster rules don’t trump those duties.
Even though the filibuster has been further restricted when it comes to presidential appointees, the Senate is still playing games and periodically refusing to take action. In one notable case, the Republican Senate refused to take action on President Obama’s nomination of Merrick Garland to the Supreme Court, leaving that seat on the court vacant for an inappropriate length of time.
If I am elected president, and if the U.S. Senate fails to perform its advice and consent role with regard to my nominees, I will challenge them in the courts. They can vote yes or no on a president’s nominees, but they can’t just refuse to consider them.