Cardozo Law Review (Forthcoming 2004)


In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own political and policy preferences.

The case for applying an appropriately framed supermajority confirmation rule to Supreme Court justices has some merit, because these justices have substantial power to entrench new norms that would otherwise have to go through the stringent supermajoritarian process of constitutional amendment. The most substantial costs of the rule are holdout costs, which are likely to be particularly high at the beginning of the rule's operation. These costs could be reduced if the change to the supermajority rule were itself a product of bipartisan agreement applicable to a future President. We caution that a supermajority rule initiated through filibuster by one party is likely not to be beneficial because the holdout costs would be very high as the first Presidents attempted to prevent the new rule from sticking.

In contrast, for lower federal courts, we think the supermajority confirmation rule is a mistake. Lower court justices lack the ability to make substantial constitutional entrenchments without support from the Supreme Court. Moreover, the thousand judges of the lower courts offer a real possibility of beneficial jurisprudential diversity that can improve judicial output. A supermajority rule would decrease such diversity.

Second, we consider the use of a committee supermajority rule to require the chairman of the Senate judiciary committee to hold hearings on nominees unless a substantial supermajority of committees members were opposed. This rule would end the practice that has developed in both parties of denying hearings to well qualified nominees and assure fairer discussion and deliberation.


Constitutional Law | Courts | Judges | Jurisprudence | Law | Public Law and Legal Theory

Date of this Version

September 2004