Political and Practical Effects of the Unwritten Rules of the Senate on the Judicial Appointment Process
Gregory F. Burton * | 24.1 | Comment | Citation: Gregory F. Burton, Note, Political and Practical Effects of the Unwritten Rules of the Senate on the Judicial Appointment Process, 24 U. Pa. J. Const. L. 313 (2022).
The Senate’s system of self-governance has become so complex that it requires a full-time parliamentarian to prepare written guidance for Senators and convey advice to the presiding officer on the appropriate rulings in session. In spite of (or perhaps because of) this complexity, many of the Senate’s rules are not codified, and the most recent compilation of the Senate’s informal precedent was published in 1992, with only smaller collections published electronically since. The question, then, is whether the proliferation of unwritten rules and precedents has an effect on the ability of the Senate to exercise its lawmaking authority. Senators generally adhere to the unwritten rules, but because they are not binding, they can be bent and broken. This “procedural looseness” is one of the reasons that the Senate’s actions are “especially vulnerable” to obstruction.
The Senate’s constitutional abilities and duties are expansive, but those relating to the confirmation process are not clearly defined. The chamber’s responsibilities relating to judicial confirmations are sparsely described as “Advice and Consent,” and the form of that process has changed significantly over the years. To accommodate for the dearth of formal requirements, the Senate and the Executive “developed informal accommodations or arrangements . . . with respect to judicial appointments.” The outcome of the judicial nomination process thus depends in no small part upon the exercise of these unwritten rules.
Two of the most prominent sets of unwritten rules in the Senate relate to the confirmation processes for federal officers and the judiciary—thus implicating two or even three branches of government rather than just one. The first of these is the unwritten rule of Senatorial Courtesy, under which the Senate defers to a senator who objects to a nominee for federal office in her home state. The related practice of sending out “blue slips” in the Judiciary Committee to gauge home-state senators’ support is also not subject to a formal rule. The second unwritten rule affecting multiple branches is a practice—often called the Thurmond Rule—under which nominees for federal courts may or may not be considered after an indeterminate point in the Presidential election cycle. The effect of these rules is significant, as they pertain not only to the Senate’s constitutional duties, but to the Executive and the Judiciary’s duties as well.
In Part I, I summarize the historical practices of senatorial courtesy, blueslipping, and the so-called Thurmond Rule. In Part II, I examine the effects of adherence to, and departure from, these unwritten rules. In particular, the examination focuses on the political consequences faced by senators and the practical effects of the rules on lawmaking. Part III addresses the question of whether the continued existence of these unwritten rules is desirable, in light of the constitutional duties and practical needs of the Senate. I conclude that the proliferation of unwritten rules creates too many questions and complications to be encouraged. Finally, Part IV summarizes the options available to address these unwritten rules. I explain why judicial intervention is possible but unlikely, and address two different methods of legislative reform—codification and abrogation.
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* Greg Burton is a third-year law student at the University of Pennsylvania School of Law, J.D. expected May 2022. He holds Bachelor’s degrees in Psychology and International Studies from the University of South Carolina. The author would like to thank Vincent Cahill, Dana Dyer, Andrew Figueiredo, Jessica Rizzo, and Jarett Rovner for their assistance in fine-tuning this Comment.