William & Mary Bill of Rights Journal
Abstract
The Senate is trapped in a collective action problem. Both political parties would be better off if the Senate could consistently confirm judicial nominees on a reasonable timeline. However, when the party that controls the presidency does not control the Senate, Senate leaders face strong incentives to block nominees using whatever excuse they can find. Any Senate majority considering playing nice with a president of the opposing party runs the risk that its kindness will not be repaid when the tables are turned. The only rational strategy is to apply what scholars have called the Iron Rule: do unto others before others have the chance to do unto you.
In many situations, individuals or institutions can address a collective action problem by committing to engage in socially optimal behavior, and allowing a third party, like the courts, to enforce their agreement. However, the conventional wisdom is that senators cannot. Courts, it is assumed, will decline to decide cases that allege violations of internal Senate rules. By this logic, the Senate’s dilemma can be addressed only by senators themselves. If that leads to suboptimal outcomes, so be it.
This Article argues that the conventional wisdom is wrong. As a matter of constitutional law and constitutional principle, courts should hear cases that involve violations of Senate nominations rules when the Senate so authorizes. The Article begins by articulating a hypothetical nominations rule that could improve the status quo, but is unlikely to be adopted unless it can be enforced by some entity external to the Senate. It then reviews the case law governing judicial enforcement of Senate rules, and related questions, which suggests that courts have a duty to decide cases that turn on nominations rules. Finally, the Article makes the counter-intuitive claim that, whereas judicial action is generally associated with “counter-majoritarian” interference in the affairs of the political branches, judicial enforcement of Senate nominations rules facilitates democratic governance by enabling the American people to build a better process for staffing the courts.