ConfirmThem

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

Roll Call has an article from March 28 titled "Labor Enters 'Nuclear' Fray" by Paul Kane. An excerpt:

Senate Democrats and their interest-group allies are sharpening their pre-emptive attacks against a GOP effort to end judicial filibusters, launching a series of ad campaigns and expanding the coalition to include big labor.

. . . .

The most likely early targets of the ads are Maine's Republican Sens. Susan Collins and Olympia Snowe, and Sen. Lincoln Chafee (R-R.I.), a trio of moderates who have been outspoken in their displeasure with any attempt to end judicial filibusters.

In addition, Democrats believe there are 11 other possible "no" votes they could obtain, although one internal estimate showed the Republicans ahead at this point 46-45, with nine undecided GOP Senators holding the balance of power on the issue.

All 44 Democrats and Sen. Jim Jeffords (I-Vt.) are expected to vote
against the option, meaning Frist can afford to lose five GOP Senators and still win with 50 votes, plus Cheney's tie-breaker.

Technically, Frist could win with 45 votes plus Cheney's, if the other GOP senators are neutral or absent (of course, when a person does not vote, the effect is the same as if he or she voted on the prevailing side).

Anyway, I hope the GOP does prevail here. It may superficially seem like a good idea to require a supermajority to confirm judicial nominations, but there are very good reasons why that has not been the rule for the past 210+ years. Requiring a simple majority ensures some intellectual turnover on the court, so that ultimately the surviving judicial precedents will be the ones that are firmly supported by the objective meaning of the law. Similarly, a simple majority vote also allows for intellectual diversity on the court, instead of narrowing the pool of candidates who have any chance of ever pleasing 60 senators. Moreover, irequiring 60 votes for judicial nominations is kind of scary, given that the 21 least populated states comprise less than 12% of our population, and yet are represented by 42 Senators. In contrast to the Senate, the President is more representative of the national population (despite the electoral college's imperfections). A 60-vote threshold would greatly increase the chance that a minority will improperly try to extort nominees (having particular views) from the president, even though the Constitution explicitly vests nomination in the president alone (i.e. the Constitution only provides an advisory role for the Senate after the nomination is made).

It's also important to bear in mind that endless filibusters of legislation allow a minority of Senators to preserve the legal status quo. Endless filibusters of nominations, however, would allow the minority to actually change the legal status quo, by insisting upon judges who will do their bidding.