ConfirmThem

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

President Bush received a letter from Senators Leahy and Reid yesterday. Here's how he might respond:

Dearest Senators Reid and Leahy:

You have offered to help me nominate judges. However, I feel that this duty belongs to the President, and therefore I would not want to burden you with it. However, I need your feedback about people who have already been nominated. Senate Rule 31, Section 1 specifies that the Senate will provide its advice by voting up or down on nominees, and I am waiting for that advice. Please stop withholding your advice.

You have offered to help me select consensus nominees who will generate strong bipartisan support. I have a counter-offer. How about if I help each of you select which legislation you will vote against, so that we can have more laws that enjoy strong bipartisan support? Each of you should never vote against legislation until you reach consensus with me, alright?

Senators, I want to do my job, and you ought to do yours. Do you think it would be constitutional for the Senate to tell me, "George, nominate whoever you want for this judgeship, but we won't vote for anyone but Jerry Springer?" Of course that would be blatantly usurping the constitutional power of the President. Surely that usurpation would not be eliminated by instead telling me that you won't vote for anyone but raunchy TV hosts, or that you won't vote for anyone but consensus nominees. Please, Senators, try to look at this from my perspective, and from the perspective of the Constitution's framers.

You will one day have a liberal President in office and liberal control of the Senate. Then you can nominate judges whom you prefer. It is essential to the rule of law that different presidents be able to shift the direction of the judiciary. That way, in the long run, the only surviving precedents will be those that are firmly based upon the objective meaning of our laws.

I do favor preserving the filibuster for legislation. But legislation and nominations are very different things. They are in different articles of the Constitution. Filibustering legislation allows a minority to preserve the legal status quo. In stark contrast, filibustering nominations allows a liberal minority to demand judges who will do their bidding.

Please Senators, don't make the GOP drop the bomb. But if it is necessary to end this judicial confirmation war, then the Senate GOP may well drop it. In the mean time, I urge you to carefully read Federalist 66 and 76, to learn how you can exercise your advice and consent function without intruding on the nomination function.

Gentlemen, your abuse of the filibuster has given me the lowest appellate confirmation rate of any president going back at least to Harry Truman. Never before 2003 was a judicial nomination rejected by filibuster, despite having clear majority support in the Senate. I hope that Senate traditionalists will succeed in restoring the Senate's constitutional role in the confirmation process --- not for my sake, but for the sake of our country in decades and centuries to come. Thank you for your kind attention.

Sincerely Yours,

W

P.S. Regarding your comments about "checks and balances," see here.