ConfirmThem

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Senator John McCain was interviewed on CBS News' Face the Nation today. Here's the relevant part of the interview:

SCHIEFFER: And with us now from Phoenix, Arizona, Senator John McCain. Senator, thank you very much for coming. Well, you heard what Senator Reid just said. Senator McCain, do you think your leader in the Senate, Senator Frist, is actually going to go through with this thing that he has threatened to do, and that is to basically overrule the idea of the filibuster? Do you think that's actually going to happen?

Senator JOHN McCAIN (Republican, Arizona): I don't know because I'm still hoping that we can sit down and work this out. Look, elections have consequences. There were a number of President Clinton's appointees that I had serious concerns about, but I believe that the American people speak every four years. And I think that we ought to remember, for over 200 years, somehow we've been able to work this issue out and we should be able to. Could I just mention, Bob...

SCHIEFFER: Sure.

Sen. McCAIN:... that I think this judges issue is a symptom of the fierce and almost bitter partisanship that exists in Washington today. And we've seen other examples of that, but we should be able to sit down, we should be able to work it out. We are in a war. We do have severe budgetary and fiscal problems. It would not be good for America to shut the Senate down. And I think that one of the reasons why you heard Senator Reid not exactly totally firm on some aspects of that is because, one, he experience of '94, but, two, will the Republicans shut down the government and also there is there are overriding issues that we should be deciding on rather than shutting down the United States Senate.

SCHIEFFER: Well, let me just ask you the question directly, because you heard Senator Reid mention your name as one of those who is thinking perhaps of breaking with your own party leadership on this. Would you oppose this if Senator Frist decides to do it, Senator McCain?

Sen. McCAIN: I would listen to my leaders. I believe that these judges should be confirmed. I think that they are good people. And as I said, elections have consequences. Having said that, the Senate is different. Wyoming has two votes andCalifornia has two votes. We have traditionally protected the rights of the minority. I remember, not with great joy, when I was with the minority in the-- with Republicans who were in the minority in the Senate and President Clinton was president. And we were able to stop some of his initiatives because we had more than 40 votes. I think that there's a problem with a slippery slope. I think that there's a problem with really changing the environment of the Senate and we are different from the House and if we don't protect the rights of the minority, someday history shows that we won't always be in the majority. And if you had a liberal president and a Democrat-controlled Senate, I think that it could do great damage.

SCHIEFFER: Well, can I just ask you the direct question? Are you opposed to doing away with the filibuster, Senator?

Sen. McCAIN: Yes.

SCHIEFFER: You are.

Sen. McCAIN: Yes, but I will listen to our leadership.

SCHIEFFER: Allright. Let me just ask you one more question. At this point, do you think your leader, Senator Frist, has the votes that would be necessary to do away with the filibuster?

Sen. McCAIN: I don't know. I think it's going to be close. People that make a living doing these kinds of counts say that it's about five or so. But all of us want to listen to our leadership. We believe--the Republicans, I'm talking about--we believe these judges should bec onfirmed. At the same time, we have these other concerns and I think they are legitimate. Suppose, Bob, that there's some overwhelming legislative issue that comes up after we've done this? This is important to the future of the country. What would keep us from taking the same tack about a legislative issue if it were some really huge issue that we're now contemplating as far as confirmation of judges is concerned?

I guess, if Senator McCain was on my talk show, things might have been handled a bit differently (no offense to Bob Schieffer). For example, regarding "slippery slopes" and the "rights" of the minority, I wish Senator McCain had been asked whether or not he believes there could ever come a point where the minority overuses the filibuster so much that they have really gone beyond what their legitimate rights are. Why is this not such a point?

Everyone on all sides of this controversy agrees that we're talking about slippery slopes. Sen. Frist and the GOP are very concerned that the slippery slope will lead to filibusters of Supreme Court nominees. It could even lead to filibuster of a vice-presidential nominee, if Mr. Cheney retires. Does Sen. McCain believe that doing all that is within the legitimate rights of the minority, and that the only people the minority would have to answer to would be their own constituents?

Speaking of slippery slopes, suppose just for the sake of argument that 45 Senators say to George W. Bush: "Mr. President, go ahead and nominate someone for Chief Justice, but we won't allow anyone to be confirmed but Stephen Breyer." Does Senator McCain really think that the Senate majority would be well-advised to just sit back and let that kind of thing happen? Wouldn't it be an infringement of the President's nomination power? When you come right down to it, that's not very different from what's happening now. Senator Schumer and friends have used the filibuster to give this president the lowest appellate confirmation rate of any modern president, going back at least to Harry Truman. They have used the filibuster for the very first time in history to defeat a judicial nominee supported by a clear majority of the Senate. Senator McCain, we are already on a slippery slope!!!

Senator McCain's primary concern seems to be how to protect the legislative filibuster. That's a legitimate concern. One way would be to modify the Senate rules by statute instead of by changing the rules directly. Another way to protect the legislative filibuster would be to change the nomination situation by simply enforcing or reinterpreting existing Rule 31 (Section 3 of which is pretty clear that nominations can only be rejected by majority vote). These are two valid approaches.

And so what if a future liberal President sends liberal Supreme Court nominees to a liberal Senate? That's his (or her) prerogative. It's incredibly important for different presidents to be able to shift the direction of the Court, so that in the long run the only surviving judicial precedents are the ones that are firmly based on the objective meaning of our laws. It's essential to recognize that judicial nominations have this and many other characteristics that distinguish them from legislative matters, which explains why they're covered in separate articles of the Constitution. Filibustering legislation allows a minority to preserve the legal status quo by preventing enactment of new laws, but --- in stark contrast --- filibustering judicial nominations allows a minority to change the legal statis quo, by insisting upon judges who will do their bidding. It would be unfortunate if Senators like McCain treat nomination filibusters just like legislative filibusters, for the sake of protecting the latter. Legislative filibusters can be protected without allowing the confirmation system to be destroyed.