ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Anyone who hasn't seen and used the Congressional Record on the internet has really been missing out. It's an amazing resource for citizens to find out what their elected officials in Washington D.C. are actually saying and doing. The online Congressional Record is updated so fast that you can already search through the speeches delivered yesterday in Congress. Senator Specter delivered one such speech, and here's an excerpt:

Courageous Senators and this institution as a whole resisted great political pressure ... that would have threatened the separation of judicial powers and the independence of the President. These instances were the 1804-1805 impeachment and trial of Associate Justice Samuel Chase and the 1868 impeachment of President Andrew Johnson.

Specter discusses both of those historical episodes at some length, with reference to the current controversy about nomination filibusters. If Justice Samuel Chase had been impeached, then Congress probably would have had the judiciary under its thumb for the past two centuries. Likewise, if President Andrew Johnson had been impeached, then Congress probably would have had the President under its thumb for the past century and a half.

I cannot speak for Senator Specter, of course, but to my mind the present situation is analogous in this way: continuation of endless judicial nomination filibusters would put both the executive and the judicial branches under the thumb of the Senate to a greater extent than they have ever been. The Senate would be dictating to the President what types of nominees he must choose, thus effectively usurping a good deal of the President's nomination power. Likewise, more than ever before, the Senate would be inquiring about how nominees will decide particular cases, and extracting commitments from nominees, thus effectively usurping a great deal of the independence of the judiciary. This is what happens when a supermajority must be pleased, instead of having to please a simple majority.

The Democrats' historical counter-arguments are weak. They say that Bush is overreaching like Jefferson and FDR did, and therefore must be stopped. But what did Jefferson do? He tried to get judges impeached, whereas Bush isn't doing anything like that. And what did FDR do? He tried to force judges into retirement, and expand the size of the Supreme Court, so that he could have more vacancies to fill. Bush isn't doing anything like that either. All Bush is doing is what Presidents have always done: nominating people who share the president's general judicial philosophy, in the expectation that majority-supported nominees will get up-or-down votes.

Hopefully, reasonable Democratic Senators will have the good sense to suspend these endless filibusters of judicial nominations. They're not good for the country, and are detracting from lots of other important business. If the Democrats persist, then the GOP may have no choice but to restore tradition.