ConfirmThem

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

Senator Frist says, "Soon, all 100 Senators will have to decide if these highly qualified candidates will get a fair up-or-down vote on the Senate floor."

Justice Brown was previously approved by the Senate Judiciary Committee on November 6, 2003 and debate was allowed on the floor until that nomination expired on December 8, 2004. That's over a year for debate, already.

Justice Owen was previously approved by the Senate Judiciary Committee on March 27, 2003 and debate was allowed on the floor until that nomination expired on December 8, 2004. That's over a year for debate, already.

It seems to me that part of the problem the GOP is having is that there is still no firm and detailed proposal regarding how the "constitutional option" would work. Once there's a firm proposal, then people can start defending it, and public opinion can be accurately measured. Until then, everything is smoke and mirrors.

In my opinion, the "constitutional option" should cover all nominations, rather than just covering judicial nominations, or just covering appellate judicial nominations. All nominations are subject to the same constitutional provision, which gives the nomination power to the president, and which thus forbids the whole Senate or a Senate minority from trying to extort preferred nominees from the President.

Also, it seems to me that the "constitutional option" should allow for a year of floor debate on a nomination, unless cloture is invoked sooner by a vote of 60 Senators. In the case of Justices Owen and Brown, the Senate has already allowed for well over a year of debate for those nominations. Allowing a year for floor debate would make it obvious to the American people that the GOP is not trying to silence anyone.

Finally, I believe that the "constitutional option" should be used to reinterpret an existing Senate rule, instead of being used to establish a new precedent that flies in the face of the existing Senate rules. In particular, Senate Rule 31, Section 3 implies that a nomination can only be rejected by a majority vote: "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration...." A simple majority of the Senate can now use its constitutional power to interpret the word "rejected" in Rule 31 so that it includes a situation where a minority refuses to yield the floor after a year of floor debate has already been allowed. Indeed, leading Democratic Senators have proudly announced that their goal is for certain nominations to be "rejected by the Senate," so why not reinterpret Rule 31 accordingly so as to render their efforts out of order? Rule 31 only applies to nominations, and so there would be no possible impact on legislative filibusters.