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"A Threat to Impartiality in the American Senate"--A Commentary by Prof. Bruce Ackerman


(This essay was originally published in the May 16, 2005, edition of the Financial Times.)

A threat to impartiality in the American Senate
By Bruce Ackerman, Sterling Professor of Law and Political Science

During the coming week, the US Senate will be struggling with a question that will affect the path of American constitutional law for decades. While senators are battling over Democratic efforts to filibuster George W. Bush's nominees to the courts of appeal, this conflict will set the stage for a larger struggle in June, when William Rehnquist is expected to announce his retirement as chief justice of the Supreme Court.

Mr Rehnquist's retirement will be the first of a series. Eight of the court's nine justices are over 65. Depending on the new appointments, the court may continue down its present course or launch revolutionary changes in constitutional principle. Under existing rules, it takes 60 senators to terminate debate, enabling Democrats to filibuster judicial nominations that pander too obviously to the religious right. But rightwing activists are pressing the 55 Senate Republicans to allow a simple majority to confirm the president's judicial nominations.

Their prime target is Bill Frist, the Senate majority leader. As a leading candidate for the presidency, Mr Frist is especially eager to pacify his religious constituency. But the Senate rules do not make this easy. A special provision requires "two-thirds of the senators present and voting" to end debate on rule changes and Mr Frist will fall far short of the 67 senators this requires. His predicament is exacerbated by another provision stipulating that no rule may be changed except as "provided in these rules".

Faced with this unambiguous command, the Republican leadership has manufactured a constitutional objection to the rules themselves. The constitution says each house "may determine the rules of its proceedings", and for two centuries the Senate has exercised this power in a distinctive fashion. As only one-third of its members enter with every election, the Senate has viewed itself as a continuing body. Unless there is a challenge at its opening session, the Senate continues to operate under its established rules.

Mr Frist is urging his fellow Republicans to repudiate this understanding. He claims that the Senate has the constitutional right to be like the House of Representatives, which approves its rules each session by simple majority vote. Conservatives do not often insist on repudiating a practice dating from the founding fathers. In any event, Mr Frist's analogy to the House does not get him where he wants to go. Once the House organises itself at its opening session, it must follow its own rules if it wants to change them later. In contrast, Mr Frist claims that a Senate majority may simply repudiate the rules at any time. This raises the question, according to the nonpartisan Congressional Reference Service, of whether the Senate will become "a chaotic environment in which a temporary majority could change precedents any time it wanted to". The constitution gives the Senate the power to "determine its rules", but nothing gives it the authority to ignore them.

Nevertheless, the Republican leadership wants change before the Rehnquist vacancy opens. Mr Frist plans this week to make a pending judicial nomination into a test case. He is counting on vice-president Dick Cheney, as president of the Senate, to declare the key Senate rules unconstitutional, and to end debate on the basis of a simple majority vote. Unsurprisingly, he is having trouble rounding up 51 votes to support this manoeuvre, leading Mr Cheney to offer further assistance. As Senate president he has the power to break tie votes and has said he would cast the deciding ballot to destroy the rules.

There is more at stake than sheer lawlessness. The filibuster permits the Senate to play a moderating role within the constitutional system of checks and balances. Except when there is a decisive landslide, it requires the majority party to moderate its initiatives to gain the support of at least a few minority Senators. Mr Cheney's role in destroying the moderating role of the Senate is particularly problematic. For two centuries, the Senate president has been the pre-eminent guardian of the rules. Thomas Jefferson first put them in writing when he served as vice-president. His aim was to prevent political manipulation by the presiding officer, and Senate presidents have consistently served as impartial arbiters. In breaking with this tradition, Mr Cheney has a clear conflict of interests. As president of the Senate, he owes the institution fidelity to its rules, but as vice-president to Mr Bush, he wants to see his boss's judicial nominations confirmed. By allowing his executive interest to trump his duty to the Senate, Mr Cheney is undercutting the separation of powers.

Constitutional tragedy turns to farce in the light of Mr Cheney's professed aim: to appoint judges who will return to the original understanding of the constitution and the rule of law. Physician, heal thyself.


The writer is Sterling professor of law and political science at Yale University.