ConfirmThem

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

The Dallas Morning News quotes Senator Kay Bailey Hutchison:

We should change the rules to ensure that the Constitution is adhered to. There's nothing nuclear about it. If the Democrats bring down government because Republicans insist that the Constitution is adhered to, that is the Democrats' choice.

Indeed, the Constitution gives to a simple majority of the Senate ultimate authority to "determine the rules of its proceedings." The Senate has a duty to exercise that authority as needed in order to address what Senator Reid once called "abuse by an obstinate partisan minority." Neither a Senate majority nor a Senate minority is entitled to abuse the Senate's constitutional powers by extorting from the President nominees having a particular type of judicial philosophy. Senator Hutchison is correct that the Senate majority has every right and duty to prevent the Senate minority from usurping the nomination power in that way. The senatorial "advice" called for by the Constitution pertains to whether or not a nominee should be appointed, and NOT who should be nominated in the first place (e.g. see Senate Rule 31, Section 1). The legitimate "advice and consent" role of the Senate has nothing to do with extorting nominations, as Alexander Hamilton explained:

In the act of nomination, his [i.e. the President's] judgment alone would be exercised . . . . To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

The Highway Bill may just have to wait. This whole nomination thing needs to be resolved. The Senate Rules are currently being abused so as to usurp the President's nomination power, and the Senate majority is entitled and obligated to determine rules that address that problem. The Washington Post has an article today examining precedents for modifying Senate Rules by simple majority.