ConfirmThem

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

If you want a parliamentary ruling that endless filibusters of judicial nominees are out of order, then forget about the Constitution. Here's why, according to Senator Hatch:

Most of the speculation about this approach posits a question of order raising a constitutional issue such as Rule 22 is unconstitutional, at least as applied to judicial nominations. Under longstanding precedent, however, this approach requires the presiding officer's favorable ruling on a question of order framed in NON-CONSTITUTIONAL terms and a majority voting to table the ensuing appeal of that ruling.

In other words, you've got to argue that these endless filibusters violate SENATE RULES. And what Senate Rule are you going to rely on?

The best rule to rely on is Rule 31, which governs nominations, and which has absolutely nothing to do with legislation, or with filibusters of legislation. And what does that Rule say about majority control of the nomination process? It says this:

Rule 31, Section 3: "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration..."

What's critical here is the IMPLICATION of this rule. It would be absurd for a losing Senator in the majority to be able to seek reconsideration, while a winning Senator in the minority cannot, so Rule 31 must mean that the winning Senator is in the majority. Thus, when a nomination is confirmed or rejected, it must be by majority. Voila! Senate Rule 31 contains every majoritarian principle that you could possibly hope to find in the Constitution. It would be twisting Rule 31 to say that it allows a minority to reject nominations.

Isn't Rule 31 great? But now some of you want to go and ruin everything by saying that endless filibusters don't amount to rejecting a nomination! Have Reid, Durbin, and Schumer driven you out of your minds? Of course an endless filibuster amounts to rejecting a nomination! Just because Chuck Schumer and Harry Reid and Dick Durbin say the same thing doesn't mean it's wrong. These nominations were indeed rejected --- unfairly and unlawfully --- by the Democratic minority.

It's in Schumer's and Reid's interest to provoke Republicans into denying that the nominees were previously "rejected." That way, Rule 31, Section 3 couldn't be used against them.

Even if the nominees had been rejected by a majority instead of by a minority, President Bush would still be fully entitled to renominate them. For example, James C. Matthews was nominated by President Cleveland, defeated by a majority of the Senate, later renominated, confirmed, and appointed.

Who cares if these Democrats want to go around complaining that these nominees were already rejected, and complaining that the GOP is wasting the Senate's time by rehashing old issues? The retort should be: yes the nominees were rejected, and you Dems broke the Rules by forcing the Senate to reject these nominees.

Skeptics might think that the word "rejected" is some technical term that implies there must have been an up-or-down vote. Think again. Senate Rule 28 deals with conference committee reports, and says the Senate can "reject" a conference report by a point of order decided by the presiding officer, with no vote needed. The idea that "rejected" has a narrow technical meaning is also contrary to the legislative history of Rule 31 (on Jan. 17 and Feb. 18 of 1843). As everyone knows, the dictionary says that "reject" means "refuse," and certainly the filibustered nominations were refused, obstructed, and blocked all the way until the nominations expired. Rule 31 emphatically does not say "formally confirmed or rejected." Moreover, this interpretation of Rule 31 would moot any question about constitutionality, which is an additional reason for adopting this interpretation.

Of course, nominations can be filibustered, in order to extend debate, convince the other side, explore issues, and the like. Nominations can also lapse, for example if the Senate simply doesn't get around to considering them. But Rule 31 pretty clearly says that a minority can't filibuster a nominee just to reject the nominee by admittedly running out the clock. By the way, that's a completely different situation from when the MAJORITY decides to let a nomination languish forever in committee or on the calendar, but even in those cases a floor vote might be the most appropriate thing to do.

Again, best wishes from all of us bloggers to Senator Specter for a speedy recovery.

P.S. There is another solution to this whole problem besides a parliamentary ruling, as Senator Hatch describes, and that is to amend the text of the Senate rules. I don't mean to criticize that option at all, but merely point out that a parliamentary ruling could be obtained instead.