Aaron-Andrew Bruhl (University of Houston Law Center) has posted If the Judicial Confirmation Process is Broken, Can a Statute Fix It? on SSRN. Here is the abstract:
Many observers believe that there is something seriously wrong with the current state of the judicial confirmation process, particularly that it features too much conflict and obstruction. This Article does not take sides on whether reform is necessary but instead examines the relatively neglected issue of the vehicle through which reform might take place – that is, the method of implementing whatever reform (if any) is thought desirable. In particular, this paper will take up the question whether the confirmation process could be reformed not through the vehicles that are usually proposed – a constitutional amendment, an change to internal Senate rules, an informal “deal” or norm – but instead through the less discussed mechanism of a statute that would govern the Senate's procedures. The statute might, for example, purport to bar filibusters of judicial nominations. While employing a statute might at first seem peculiar, there is in fact a large, growing, and interesting body of statutory law that governs internal rules of debate.
Is a statute a permissible method of reform in this context? This Article canvasses various potential impediments to employing a statute and concludes that the Constitution would not permit a statute to override the Senate's ordinary power to control its rules of debate. The reason that such a statute could not formally bind is that it would violate a structural principle of cameral procedural autonomy that is critical to the constitutional design. The Article nonetheless suggests that a confirmations statute might still have value to reformers. It might have great practical political effect even if it is not legally binding.
Very interesting and highly recommended.
I've written about one of Bruhl's issues--the relationship between executive and Senate power over the advice and consent function, see
and
Is the filibuster of judicial nominees unconstitutional? And if it is, what can be done?