The Filibuster of Judicial Nominations: Constitutional Crisis or Politics as Usual?

Abstract

It is the intent of this article to specially discuss the constitutionally of filibustering judicial nominations - not the filibuster itself. Part II will explore the historical aspects of filibustering in America and discuss how the practice has mutated into its current state. In addition, this section will briefly discuss the history of the judicial nomination system, including the American Bar Association's involvement in the matter. Part III will address the constitutionality of filibustering judicial nominees, in addition to the impact of the advice and consent clause and the notion of separation of powers. This section goes on to discuss the wording of the constitution itself and how it sheds lights on this debate. Lastly, it is argued that the structure of the Senate Rules may be unconstitutional due to the imposition of those Rules on new Senates. Part IV will briefly describe the political dimension to this entire debate and how both sides of the aisle are mudding the waters instead of seeing the situation for what it really is - a constitutional crisis. Lastly, Part V will address the constitutional impact of this issue and suggest potential remedies.