ConfirmThem

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

Senate Rule 31 says that, "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration" It seems blindingly obvious from this Rule that rejection of a nomination must be by majority vote, and that attempts to violate this Rule are out of order. So here's the question: I entirely support amending the text of the Senate Rules by simple majority, but why is that huge step necessary, as opposed to, say, merely implementing Rule 31 via a new standing order?

Notes: Senator Schumer says: "To nominate judges previously rejected by the Senate is wrong." Senator Durbin says: "nominees ...were rejected by the Senate last Congress." Thus, they admit the nominees were "rejected." Even without those admissions, everyone knows they were rejected; the Democrats were not merely trying to further explore the merits of the nominations. It would be wrong to interpret the word "rejected" in Rule 31 in some technical or formal way. Moreover, the framers of Rule 31 purposely decided not to use the phrase "acted upon," and instead wrote "confirmed" or "rejected." This view of Rule 31 is supported by Rule 13, which deals with reconsideration of legislation; instead of the word "majority," Rule 13 uses the words "prevailing side," in recognition that the vote might not be by majority. The provision of Rule 31 dealing with reconsideration of nominees was discussed at length by the US Supreme Court in United States v. Smith, 286 U.S. 6 (1932). Of course, it would be completely absurd to suppose that the authors of Rule 31, Section 3 wanted a losing Senator in the majority to be able to seek reconsideration, while barring a winning Senator in the minority from seeking reconsideration; in other words, the authors must have meant that a Senator in the majority would be on the winning side.