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Law Professors Against Supermajority Requirement
Senate Democrats plan a press event at Georgetown University today to attempt a defense of their unprecedented use of supermajority requirements, and to attack Republican efforts to restore Senate tradition in the judicial confirmation process. In an effort to provide some context, I thought the following quotes from some actual Georgetown law professors might prove useful. Given their statements below, it’s not clear whether the professors will be allowed at the event:Liberal Georgetown Law Professor Susan Low Bloch wrote on March 14, 2005 that, "Everyone agrees: Senate confirmation requires simply a majority. No one in the Senate or elsewhere disputes that." [These remarks were made in correspondence to Sen. John Cornyn. Her memo can be found: here. Sen. Cornyn’s response to Professor Bloch pointed out that, unfortunately, several Senate Democrats disagree. Text of that letter can be found: here]Professor Bloch has also condemned supermajority voting requirements for confirmation, arguing that they would allow the Senate to: "upset the carefully crafted rules concerning appointment of both executive officials and judges and to unilaterally limit the power the Constitution gives to the President in the appointment process. This, I believe, would allow the Senate to aggrandize its own role and would unconstitutionally distort the balance of powers established by the Constitution." Liberal Georgetown Law Professor Mark Tushnet has written that, "[t]he Democrats' filibuster is . . . a repudiation of a settled pre-constitutional understanding." He has also written: "There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules--on scheduling, on not having a floor vote without prior committee action, etc.--to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do so with respect to a filibuster."