ConfirmThem

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

Ralph Neas wrote a February 1 essay titled "The Nuclear Option", republished at Alternet yesterday. He says that revoking the ability of 40 Senators to filibuster judicial nominees, "would enable a GOP President with a 51-vote Senate majority to appoint Pat Robertson to the Supreme Court." Neas left out the fact that allowing 40 Senators to extort whoever they want as judges would let the minority insist Jerry Springer be appointed to the Supreme Court.

If President Bush were to nominate Pat Robertson (which is a manufactured hypothesis that is very unlikely to actually occur), then a majority of the Senate would be entitled to reject the nomination, or confirm the nomination. That?s what the founders of our country clearly intended. As Alexander Hamilton wrote, "[I]t could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy." Hamilton's language is a bit old-fashioned, but the message is clear.

Both Democrats and Republicans ought to welcome the fact that liberal presidents can appoint judges confirmed by 51 Senators, and conservative presidents can appoint judges confirmed by 51 Senators. That way, in the long run, the only surviving judicial precedents will be those that are firmly grounded in the objective meaning of our laws. For over two centuries, this system has tended to preserve the rule of law, instead of the rule of judges.

If it were acceptable for the Supreme Court to act as a life-tenured super-legislature, then Neas would be right; it would then make sense to require a super-majority for confirmation. But that's not how the courts should function. Judges are supposed to be our servants and not our masters, and are supposed to simply say what the law is, rather than what it should be. The Constitution does not give judges carte blanche, and that includes the Due Process Clause of the Constitution.

Neas just wants to lock in place the overreaching judicial philosophy of the last few decades. He wants to stop the pendulum where he likes it. If perpetual filibusters of judicial nominees were truly as vital to our country as Neas suggests, then why was such a filibuster never carried out ONCE, prior to 2003, to defeat a clear majority of Senators? Answer: judicial nomination filibusters are not vital in the least, and Neas is turning everything upside down.