ConfirmThem

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

The Press & Sun-Bulletin in Binghamton, New York has an editorial urging Democratic Senators to use persuasion instead of obstruction:

The Senate's roll is "advise and consent" --- not advise and do nothing. The president ought not to expect, or insist, on 100 percent acceptance of all his nominees, but when he refuses to withdraw a nominee, the Senate should put the nomination to a vote.

If there's a case to be made against a nominee, then they should make it and try to persuade other senators to reject the candidate in a floor vote. If the fear is that the majority will win every time because it will always vote in unison then there isn't much hope for the Senate itself, let alone the judiciary.

It seems to me the Democrats will only genuinely try calm, reasonable persuasion when the ability to obstruct is removed, so that's the best way to restore "hope for the Senate."

In other news, the New York Times grudgingly admits that Sen. Frist may be correct when he says that, "Never in the history of the Senate had a judicial nominee with majority support been denied an up-or-down vote, until two years ago." But, the Times cannot resist suggesting that Frist is somehow "twisting."

And, in the blogosphere, Juan Non-Volokh has some interesting thoughts on this subject of judicial filibusters (he says Princeton's Sean Wilentz is playing with numbers in the NY Times). Liberty Dog also makes some interesting points ("The filibuster is constitutional, but it is well within the right of the majority party to do away with it as they see fit").

It should be noted that Liberty Dog only addresses two of the many constitutional arguments against judicial filibusters. He addresses the "expressio unius" argument (i.e. the framers specified 2/3 votes for some matters so they must have meant majority votes for the others), and the "lex majoris partis" argument (the core principle of any legislative body is majority rule). However, there are several other constitutional arguments that many people find even more persuasive.

For example, there's the argument that the Dems are using the filibuster to usurp much of the nomination power by dictating to the President who he must nominate (instead of the Senate merely rejecting unfit nominees). Also, there's the argument that the Dems are using the filibuster to diminish the indepenmdence of the judiciary, by demanding that nominees commit on record to various things that could affect how they decide cases coming before them. Additionally, there's the argument that separation of powers requires the Senate not to dilly-dally when considering nominations from the President, just as the President cannot dilly-dally when deciding how to enforce the laws made by Congress. I find these three additional arguments more persuasive than the ones shot down by Liberty Dog.

There are other constitutional arguments too, but they may be less persuausive (e.g. the need for 60 Senators to be present in order to invoke cloture violates the Quorum Clause of the Constitution). There is also a legitmate argument that endless nomination filibusters --- even if constitutional --- violate the existing Senate rules (Rule 31, Section 3 implies that a nomination can only be rejected by a majority vote).

But Liberty Dog is correct that, regardless of any constitutional or rule violation, the Senate can change its rules or precedents whenever it wants, and no one argues that it takes more than a majority to change its precedents.