ConfirmThem

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

Senator Hatch has just given a speech on the floor of the Senate responding to the speech last week of Senator Byrd. Sen. Hatch's speech is also available here. It pretty much speaks for itself.

Meanwhile, Senator Byrd has just delivered another speech on the subject. Senator Byrd is an elder statesman, and no doubt has at heart the best interests of his state and the country. However, he said this: "It is ridiculous to suggest that mere superiority of numbers in the Senate should, alone, guarantee confirmation." Yet that is exactly what has always guaranteed confirmation, after a full and fair debate. Saying a thing is ridiculous does not make it so. Senator Hatch spoke about Senate Rule 31, and that Rule requires a "majority" vote in order to confirm or reject a nomination.

Senator Byrd also said that he dislikes "activist judges of any stripe." Most Senators probably feel the same way. However, there is a powerful minority of Senators who do not feel the same way, and that is one major reason why majority rule is so important in this process. For example, Senator Biden recently said that he would only vote for a Chief Justice who believes in unenumerated rights that can be fashioned by the judiciary, even though they are not listed in the Constitution. Why must the President and a Senate majority bow to that kind of demand? Not all "rights" are good (e.g. the right of person A to enslave person B), and the judiciary does not --- and should not --- have carte blanche to create them.

Here's part of Sen. Hatch's speech:

In his op-ed piece in the Washington Post last week, the Senator from West Virginia ignored our tradition regarding judicial nominations in another way. He argued that by preventing a confirmation vote through a filibuster, the Senate had formally rejected these judicial nominations. How can it be a rejection of judicial nominations when a majority of Senators support confirmation of each one? Each nominee on whom cloture was not invoked remained on the Senate's executive calendar. Our own Rule 31 states that nominations that are "neither confirmed nor rejected" shall be returned to the president. Each of those filibustered nominations was indeed returned to the president when the 108th Congress adjourned. By definition, common sense, and by our own rules, that means they were not rejected. The Senator from West Virginia cannot, on the one hand, claim these nominations were rejected but, on the other hand, claim that these filibusters are about deliberation and debate.

As Senator Hatch suggests, rejecting a nomination without a majority vote would violate Senate Rule 31. Yet, that is precisely what the minority is trying to accomplish.