ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

The New York Times reports that Senator Warner is seeking to give the President formal "advice" about who to nominate:

Senator John W. Warner, Republican of Virginia and a Senate elder, is working with Senator Robert C. Byrd, Democrat of West Virginia and the longest-serving member of the chamber, on a plan to designate for the president a pool of qualified judicial candidates who might win confirmation more easily.

Mr. Warner said in a statement Friday that "Senator Byrd and I are attempting to bring into focus the importance of the word advice in the Advice and Consent clause" of the Constitution as part of a broader agreement "that will permit the Senate to move forward this Congress with its important business, while establishing a workable blueprint for the Senate's present and future consideration of judicial nominees."

This does not seem like the best approach. Almost all constitutional scholars agree that the word "advice" in the Constitution only applies to advice given AFTER a nominee is nominated. Andrew McCarthy has put it this way:

[A]s far as the constitution is concerned, the Senate's advice is required only after the president has made his nominations.

This is clear from the plain language of the Constitution: "he shall nominate, and by and with the advice and consent of the Senate, shall appoint... judges." This advice comes AFTER the nomination.

The above-mentioned New York Times article also quotes Senator Specter:

"It is my personal view that the option of a filibuster for really extraordinary, egregious circumstances ought to be retained," Mr. Specter said, appearing to sympathize with the Democratic side of the talks. "It seems to me that each senator individually would have to make a determination as to what he or she thought were the extraordinary circumstances."

Thus, Senator Specter would personally prefer not getting totally rid of the ability to filibuster judicial nominations. However, Specter is very much against any deal that would dump the current majority-supported judicial nominees, according to the following remarks made on Friday:

A small group of Senators are attempting to take control of the Senate. By trading judges like chips in a card game, moderates are denigrating the Senate and robbing the body as a whole of its constitutional duty of advise and consent -- 12 Senators should not be picking and choosing for the entire Senate which judges receive votes.

To admit that four out of the ten judges, or six out of the ten, or seven out of the ten are worthwhile for up or down votes in a deal setting is to admit that those judges were previously being filibustered for partisan reasons even though they are qualified and deserving of votes. This would serve to reinforce public cynicism about back room dealmaking for political purposes in the U.S. Senate.

Additionally, Specter urged party leaders to release Senators from party-line voting on matters related to judicial nominations.