This report provides an overview of the major issues which have been raised recently in the Senate and in the press concerning the constitutionality of a Senate filibuster (i.e., extended debate) of a judicial nomination. The Senate cloture rule (Rule XXII, par. 2) requires a super-majority vote to terminate a filibuster. The Appointments Clause of the Constitution, which provides that the President is to "nominate, and by and with the Advice and Consent of the Senate, ... appoint" judges, does not impose a super-majority requirement for Senate confirmation. Since it has the effect of requiring a super-majority vote on a nomination, because it usually requires the votes of 60 Senators to end a filibuster, it has been argued that a filibuster of a judicial nomination is unconstitutional. In the absence of (1) any constitutional provision specifically governing Senate debate and (2) any judicial ruling directly on point, and given the division of scholarly opinion, this report will examine the issues but will not attempt a definitive resolution of them. The framers of the Constitution were committed to majority rule as a general principle. However, no provision of the Constitution expressly requires that the Senate and the House act by majority vote in enacting legislation or in exercising their other constitutional powers. There is a provision specifying that "a majority of each [House] shall constitute a quorum to do business." There are also a few provisions dictating that the Senate or House muster a two-thirds extraordinary majority to transact certain business of an exceptional nature. Although there is no constitutional provision requiring that the Senate act by majority vote in instances not governed by one of the provisions mandating an extraordinary majority, "the Senate operates under 'a majority rule' to transact business—a majority of the Senators voting, a quorum being present—with the exceptions set forth in the Constitution and the rules of the Senate." The Supreme Court has found that "the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body," except when there is a specific constitutional limitation. However, the Court has also found that the Constitution, history, and judicial precedents do not require that a majority prevail on all issues. Does the commitment of the framers to majority rule as a general principle, the fact that the Senate usually operates pursuant to majority rule, and the enumeration in the Constitution of certain extraordinary majority voting requirements mean that any exception to majority rule other than the enumerated ones is unconstitutional? Is there any constitutional defense to be offered for a Senate filibuster? Article I, Section 5, clause 2, of the Constitution authorizes "each House [to] determine the rules of its proceedings.... " The rule-making power has been construed broadly by the courts. It has been argued that the rule-making power and historical practice are the foundation for the filibuster, and that Article I, Section 5, permits the Senate to adopt procedures unless they conflict with a constitutional prohibition. Supporters of the filibuster have contended that Senate rules are not in conflict with the Constitution because the rules require 60 votes to end debate on a nomination, not to confirm a nominee, and that therefore the Senate rules are not unconstitutional because they are not at odds with the few constitutional provisions in which the framers specified a particular type of majority. Opponents of the filibuster have claimed that Senate rules violate the constitutional principle of majority rule and in effect impose an extraordinary majority requirement for confirmation of nominees that is at odds with the Appointments Clause. Several factors have the effect of entrenching the filibuster. First, Senate Rule XXII, par. 2 (the cloture rule) applies, inter alia , to amendments to the Senate rules. (A vote of three fifths of the entire Senate is usually required to invoke cloture. A vote of two thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules.) Second, Senate Rule V, par. 2, provides that "the rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." And third, because the Senate is a continuing body, its rules "are not newly adopted with each new session of Congress." Because the cloture rule may be applied to debate on a proposal to change the filibuster rule, it has been argued that the filibuster rule unconstitutionally interferes with the right of a majority to exercise the constitutional rulemaking authority by majority vote. However, supporters of the filibuster have contended that "there is no constitutional directive against entrenchment," and that the reference to "each House" in the rule-making clause (Article I, Section 5), authorizing each House to "determine the rules of its proceedings," means the House and Senate separately (not the Congress), and does not mean that one session of the Senate is barred from binding the next session. The entrenchment issue has given rise to a suggested scenario under which a simple majority might vote in favor of an amendment to the filibuster rule, a point of order might be raised asserting that a majority vote is sufficient to cut off debate on the amendment and to pass it (because the two-thirds requirement is unconstitutional), the matter would be referred by the Vice President to the Senate, and the point of order would be sustained by a simple majority of the Senate. A judicial appeal might ensue. Senators have considered changing Senate rules or practice by invoking the "constitutional" or "nuclear" option, terms that refer to various types of proceedings. This option was a focal point of a recent bipartisan agreement. The filibuster of a judicial nomination raises constitutional issues, particularly separation of powers ones, not posed by the filibuster of legislation. These issues should be considered in light of the pertinent language of the Constitution and the intent of the Framers. The Appointments Clause provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.... " There are three stages in presidential appointments by the President with the advice and consent of the Senate. First, the President nominates the candidate. Second, the President and the Senate appoint the individual. And third, the President commissions the officer. It is noted that the Appointments Clause is in Article II of the Constitution, which sets forth the powers of the President. The power of appointment is one of the executive powers of government. "... [T]he power of appointment by the Executive is restricted in its exercise by the provision that the Senate, a part of the legislative branch of the Government, may check the action of the Executive by rejecting the officers he selects." The language of the Appointments Clause is ambiguous. It does not specify procedures or time limits applicable in confirmation proceedings, and it does not require that the Senate take a final vote on a nomination. "There is little evidence indicating the exact meaning of 'advice and consent' intended by the Framers.... Records of the constitutional debates reveal that the Framers, after lengthy discussions, settled on a judicial selection process that would involve both the Senate and the President. This important governmental function, like many others, was divided among coequal branches to protect against the concentration of power in one branch." The Senate's role of advice and consent was intended as a safeguard against executive abuses of the appointment power. Citing the language of the Appointments Clause and the intent of the Framers, supporters and critics of filibusters of judicial nominations disagree about the relative roles of the President and the Senate in regard to judicial appointments, about whether the Senate has a duty to dispose of the President's judicial nominations in a timely fashion, and about whether a majority of Senators has a constitutional right to vote on a nomination. If the Senate filibusters a judicial nomination, the President has "countervailing powers," including the ability to make a recess appointment, which does not require Senate confirmation but which is only temporary, expiring at the end of the next session of Congress. Because recess appointments deny the Senate the opportunity to consider the appointees, they raise separation of powers questions about the roles of the President and the Senate in the appointments process. Special issues are raised by recess appointments of Article III judges. The independence of such judges is generally guaranteed by their life tenure. However, "a recess appointee lacks life tenure.... As a result, such an appointee is in theory subject to greater political pressure than a judge whose nomination has been confirmed." The constitutionality of the filibuster has been challenged in court, and such litigation raises justiciability issues. In a number of cases, the courts have shown a reluctance to interpret the rules of either House or to review challenges to the application of such rules. However, the case law is not entirely consistent, and it has been suggested that a court will be more likely to reach the merits if a rule has an impact on parties outside the legislative sphere. Standing and the political question doctrine would be the primary justiciability issues raised by a court challenge to the filibuster rule. Standing is a threshold procedural question which turns not on the merits of the plaintiff's complaint but rather on whether he has a legal right to a judicial determination of the issues he raises. To satisfy constitutional standing requirements, "'[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'"