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

Maybe it's nothing important, but I was just visiting another blog, where I learned of a possible rationale for scuttling the nomination of Texas Supreme Court Justice Owen. Here's the silly rationale: Justice Owen was the only one of the previously filibustered nominees to have been rejected by the Senate Judiciary Committee (SJC). Of course, she was later renominated and approved by the SJC, but some people seem to question the propriety of the renomination.

We're always looking for interesting stuff to write about here at confirmthem, so I may as well address this silly rationale. Now that the previous bogus excuse for criticizing Justice Owen has been completely debunked (i.e. Attorney General Gonzales clearly never accused her of being a "judicial activist"), people may want to latch on to another excuse. But this business of her renomination having been improper is completely baseless, as I explain further, below the fold.

The Owen renomination did not represent an abuse of the process, regardless of whether she had previously been rejected by the Senate Judiciary Committee (SJC). If President Bush had renominated her during the same Congress in which the SJC had rejected her nomination, then there *might* be reason to question the propriety of her renomination. Instead, an election intervened, so the President had every right to ask Congress to take a fresh look at Justice Owen.

Surely, if a piece of legislation is defeated in one Congress, it can be reconsidered in a following Congress. There's nothing untoward about that. Likewise with Justice Owen, her rejection once by the SJC should not bar her forevermore from applying for the same slot, if that slot remains open or becomes open.

Moreover, Owen was merely rejected by a committee and not by the full Senate. Surely, rejection by the full Senate would provide an even greater reason for a president to not renominate a nominee. And yet, among those rare occasions when the Senate has seen fit to reject a nominee, Presidents frequently have renominated those individuals. The following historical material I have plagiarized from the Committee for Justice.

In 1835, a majority of the Senate voted to postpone indefinitely the nomination of Roger Taney to be Associate Justice. President Andrew Jackson renominated Taney to be Chief Justice during the next Congress, and the Senate confirmed him.

In 1844, the Senate rejected John C. Spencer's nomination to the Supreme Court, but President Tyler nevertheless renominated him. That same year, the Senate tabled the nominations of Reuben Walworth and Edward King to the Supreme Court in 1844, but President Tyler also renominated them both.

In 1881, the Senate Judiciary Committee approved a motion to postpone consideration of President Hayes's nomination of Stanley Matthews to the Supreme Court and then refused to take any further action on the nomination. Yet in the following Congress, President Garfield nominated Matthews, and the Senate confirmed him by a one-vote margin.

In 1893, President Cleveland nominated William Hornblower to the Supreme Court. The committee refused to report his vote out of committee, yet Hornblower was renominated during the next session of the same Congress.

More recently, in 1997, the Senate Judiciary Committee refused to report the Justice Department nomination of Bill Lann Lee to the entire Senate. Yet President Clinton not only renominated Lee in subsequent sessions of the Senate, he even gave Lee a recess appointment in 2000 evading the Senate's advice and consent prerogative altogether without triggering substantial opposition in the Senate.

Incidentally, if a renomination were withdrawn merely because it had previously been rejected by the Senate Judiciary Committee, there apparently would be nothing to stop the President from successfully nominating the same person for a different slot. So, it's hard to see what would be accomplished for anyone by withdrawing the renomination.