If the Judicial Confirmation Process is Broken, Can a Statute Fix it?

Abstract

Many observers believe that there is something seriously wrong with the current state of the judicial confirmation process, particularly that it features too much conflict and obstruction. This Article does not take sides on whether reform is necessary or desirable but instead examines the relatively neglected issue of the vehicle through which reform might take place - that is, the method of implementing whatever reform (if any) is thought appropriate. In particular, this Article will take up the question whether the confirmation process could be reformed not through the vehicles that are usually proposed - a constitutional amendment, a change to internal Senate rules, an informal deal or norm - but instead through the mechanism of a statute that would govern the Senate's procedures. The statute might, for example, purport to bar filibusters of judicial nominations. While employing a statute might at first seem peculiar, there is in fact a significant, growing, and interesting body of statutory law that governs internal rules of debate.

Is a statute a permissible method of reform in this context? This Article canvasses various potential impediments to employing a statute and concludes that the Constitution would not permit a statute to override the Senate's ordinary power to control its rules of debate. The reason that such a statute could not formally bind is that it would violate a structural principle of cameral procedural autonomy that is critical to the constitutional design. The Article nonetheless suggests that a confirmations statute might still have practical political effect even if it cannot be legally binding.

Keywords: judicial confirmations, judicial appointments, confirmation process, filibuster, rules of proceedings, entrenchment, congressional procedure