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The Framers vs. Sen. Frist

by David E. Kyvig on Apr 28, 2005

David E. Kyvig

Conservatives portray the men who framed the Constitution as repositories of democratic wisdom. If that’s what they believe, they ought at least be faithful to one of the Framers’ core principles. But they aren’t doing so. Instead, ignoring that principle, they’re rushingÊ headlong to impose a radical reform on the United States Senate.

Senate Republicans, lusting to install a few judges who can only be confirmed by slender majorities, are ignoring a principle in which James Madison and his contemporaries deeply believed. Senate Republican leader Bill Frist is advocating a different approach to representative democracy from the one the Framers embraced.

The men who gathered in Philadelphia in 1787 thought that the more enduring the result of a democratic choice, the greater the need for widespread consensus to give it legitimacy. For more than two hundred years the United States has applied that wisdom to lifetime judicial appointments as well as other decisions with lasting impact.

Now Frist, aided by Vice President Dick Cheney and other Republicans, seeks to change Senate rules on judicial nominations. Their proposed reform, as the Framers would have immediately understood, would institute a form of democracy far less prudent than what the nation has long enjoyed.

Majority preference is at the core of self-government when choices can be confirmed or reversed on a frequent basis. In our representative form of democracy, one-half plus one determine elections and routine legislative policy. If majority sentiment changes, these choices can be overturned. But as the enduring impact of a decision increases, so too does the need for greater agreement that it represents a good choice. Broad support is needed for decisions we’re stuck with.

The Framers weren’t comfortable with slender majorities when the nation’s representatives needed to make a decision that would bind the nation for a long time. They believed that a higher degree of democratic consensus was essential to obligate the government for an extended period. The longer the duration of the democratic commitment, the greater the degree of consensus they demanded.

For instance, treaties with foreign countries obligate the nation far into the future. They override contrary federal and state legislation and, once adopted, are difficult to change. The Framers sensibly required treaties to win the approval of two-thirds of the Senate before taking effect.

Impeaching a duly chosen public official also has enduring impact. Impeachment overturns normal democratic selection practices because it disgraces and removes from power properly chosen officials. To carry out such a drastic action, the Constitution requires both majority approval by the House of Representatives and a two-thirds vote by the Senate. A simple congressional majority won’t do for such consequential business.

Setting fundamental and permanent rules of government requires an even higher degree of democratic consensus. More than two-thirds of the original states, 9 of 13, had to agree for the Constitution to take effect.

While the ability to alter the Constitution is an essential component of democratic self-government, an easily changeable constitution would be dangerously unstable. The Framers were not content with a constitutional amendment endorsed by two-thirds of both houses of Congress. They also insisted that all amendments be ratified by three-fourths of the states. Overwhelming democratic consensus for permanent change in the fundamental law has become a hallmark of American constitutional democracy.

A judicial appointment may affect laws for decades to come. It’s consistent with the American constitutional tradition to require more than a simple majority for a congressional decision to grant lifetime tenure to a judge.Ê Most judicial appointments over the years have in fact won such broad endorsement from the Senate. Even in the current contentious era, the vast majority of judicial nominations have been confirmed overwhelmingly.

When presidents select, and the Senate confirms, judges who are widely acceptable, respect for the federal judiciary is enhanced. To now abandon a system that has served the nation well, as Senator Frist and his allies rashly propose, imperils the American tradition of consensual democracy.

The Senate’s filibuster rule simply provides that when a full 40 percent of the members are not in agreement with the majority they can delay action. In other words, 60 percent of the Senate must agree to confirm a judge if there is substantial objection to the nomination. Sixty percent agreement is not an impossibly high threshold, not nearly as high as a treaty ratification, impeachment or constitutional amendment. But a 60-percent consensus does assure that a decision irreversible for decades to come has more support than the most slender democratic majority of one half plus one.

The Frist proposal should be seen for the corrosive measure that it is and be soundly defeated. It has grave consequences for our democratic system. In the long run, what matters for the United States is not whether a few questionable judicial nominees are approved or blocked. What matters is whether the longest serving officials in our constitutional system are confirmed with an appropriately high degree of democratic consensus to validate their judicial authority.


David E. Kyvig, Distinguished Research Professor at Northern Illinois University, is author of "The Age of Impeachment: American Constitutional Culture since 1960" (2008).