ConfirmThem

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

Before getting to the recent remarks by Senators Lugar and Hagel, here are a couple brief comments from the citizenry. Candie Gibson Lemaire has this comment in BayouBuzz.com: "It is becoming even more clear, we need Harry Reid to get a hold of his anger and lead his party to resolve issues, not lose control." And, Ginger Rutland has a column in the Sacramento Bee defending the federal appellate court nomination of Justice Janice Rogers Brown: "I want judges on those courts who will defend the rights of the poor and the disenfranchised in our country against the rich and the powerful when the rich and the powerful are wrong." Also, don't miss this excellent piece about Justice Owen from Associated Press ("The American Bar Association unanimously rated Owen as 'well-qualified.' She is the first nominee so rated ever denied an up-or-down confirmation vote").

The South Bend Tribune has a column by Jack Corwell discussing the stance of Indiana Sen. Richard Lugar, including this information:

Lugar, a Republican team player, supports the nominees and also backs Senate Majority Leader Bill Frist, R-Tenn., in negotiations in which Frist has raised the possibility of the nuclear option as a last resort if Democrats continue to block some of the president's judicial nominees.

"At the end of the day, I will support Leader Frist in what he has to do," Lugar said. Failure to back Frist would undercut the leader in negotiations, Lugar said, and allow Senate Minority Leader Harry Reid, D-Nev., to claim that "your own folks aren't behind you."

"Despite all the protestations," Lugar said, an end of judicial nomination filibusters "sets the stage for the end of the filibuster on legislative items. Some would say that's all to the good in a democratic society." But he said the Senate has used the filibuster for "protections of minority points of view when majorities went back and forth. That in retrospect did have a cooling effect and sometimes was very helpful ...

"I'd like to see that retained."

Meantime, Sen. Chuck Hagel of Nebraska has been talking too:

"My goodness, you've got 100 United States senators. Some of us might be MODERATELY INTELLIGENT enough to figure this out. We would, I think, debase our system and fail our country if we don't do this," Hagel told ABC's "This Week."

"But you can't give up a minority rights tool in the interest of the country, like the filibuster," he said.

To Sen. Carl Levin, D-Mich., "It's that kind of statement that gives us hope."

....

"The United States Senate is a minority rights institution unique in the world," Hagel said. "And I don't think either side wants to give that up. Now, the other part of this, which I also believe strongly, is that presidents deserve votes on their nominees."

Yet he noted that Republicans prevented votes on many of President Clinton's choices for the federal bench.

"The Republicans' hands aren't clean on this either. What we did with Bill Clinton's nominees --- about 62 of them --- we just didn't give them votes in committee or we didn't bring them up," Hagel said.

So, Hagel's main point is that the right of a minority to filibuster judicial nominations should not be completely wiped out. I think Sen. Hagel's arguments are not altogether persuasive. A minority veto of majority-supported judicial nominees was never exercised before 2003, and I've said many times here at this web site that a simple majority could have "discharged" any or all of the Clinton nominees from committee (i.e. the blockage of Clinton nominees was by a majority and not by a minority). Any MODERATELY INTELLIGENT person ought to be able to recognize this fact, which has also been pointed out by others, including liberal law professor Mark Tushnet. Moreover, any MODERATELY INTELLIGENT person should be able to understand that legislative filibusters enable the minority to preserve the status quo by preventing enactment of new legislation, whereas judicial filibusters give the minority a far greater power, to change the status quo by demanding judges who will do their bidding.

Anyway, I have a suggestion for addressing Sen. Hagel's concern. Suppose the Senate sets the number of votes at, say, 52 for ending debate on appellate judicial nominations, while continuing to set 60 votes as the threshold for legislative filibusters. Sen. Frist has already recognized that there is no present need to change the rule for district court judges, and by the same token there is no present need to lower the number of votes below 52 for ending appellate nomination filibusters. All of the previously filibustered nominees would be confirmed under a 52-vote standard, and yet a minority of Senators would still have power to filibuster forever as Senator Hagel seems to want.

This suggestion of mine would NOT require a 2/3 vote to be implemented, and could instead be implemented by simply adding a standing order which would only require 60 votes. True, a standing order cannot amend a standing rule, but this standing order I'm suggesting would not amend Rule 22 or any other rule. Rule 22 provides an exception to the Rule 19 requirement that no Senator may interrupt a filibustering Senator. In contrast, the standing order that I'm suggesting would have nothing to do with a Senator interrupting a filibustering Senator, but rather would give the Vice President authority to interrupt a filibustering Senator, absent the objection of 49 Senators for an appellate filibuster (or 40 Senators for a legislative filibuster). There currently is no written Senate standing rule or standing order that prevents the Vice President from interrupting a filibuster, so the standing order that I'm suggesting would actually increase minority rights rather than decrease them, and would increase protection for the legislative filibuster rather than decrease protection. The standing order that I'm suggesting could --- if Senators so desire --- have a sunset clause so that it expires after Democratic and Republican presidents have served for an equal time or have appointed an equal number of Supreme Court justices (that way tradition would be restored for the time being while a permanent solution is considered).

Incidentally, the GOP Senate majority already represents a minority of voters, so forbidding the GOP Senate majority from confirming judges can actually be considered an infringement of minority rights.