ConfirmThem

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

On Tuesday, an article by Jeanne Cummings appeared in the Wall Street Journal regarding nomination filibusters. The article was quickly criticized by Hugh Hewitt as being slanted, which it is in some respects. But the WSJ article also contains some quotes that are worrisome, if true:

"I don't know why in the last 200 years we have not had this kind of crisis before, but we've always been able to work things out," says Arizona Sen. John McCain, who is now "strongly inclined" to vote against the rule change. "We will not be in the majority forever. History has shown us that," the 19-year incumbent added.

If Senator McCain is truly asserting that advocates of filibuster reform are shortsighted, then he is mistaken. There are extremely compelling reasons for believing that the long-term interest of the judiciary and of the country will be poorly served by a minority Senate veto of judicial nominations. For the past 210+ years, there has been a recognition in the Senate that filibustering majority-supported judicial nominees is only appropriate as a means to extend real debate and deliberation. That tradition was jeopardized in 2003, and it is a very valuable tradition that badly needs to be restored. The tradition survived for 210+ years not by accident, but because of wisdom.

Our greatest political writers recognized that only a Senate majority could be trusted to evaluate nominations based upon merit, without dragging in other factors. As Alexander Hamilton said, "it 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." People like Hamilton put nominations and legislation into separate articles of the Constitution, because they should not be treated the same.

It's essential for different presidents to be able to shift the judicial philosophy of the courts, so that in the long run the only surviving precedents will be those that are firmly based upon the objective meaning of our laws.

Furthermore, legislative filibusters allow a minority to preserve the status quo, whereas judicial nomination filibusters allow a liberal minority to demand judges who will change the status quo. The latter is a vastly greater power.

Plain and simple, the Democrats are now seeking to bar people in the mold of Justices Scalia and Thomas from being nominated as Supreme Court Justices. Being eminently qualified is no longer enough. The Democrats are now seeking to usurp part of the nomination power, by insisting that the President select nominees from what the minority considers a "mainstream" pool of candidates.

One reason we have not had this kind of crisis before is because filibustering has become easy. The Senate can now go on with other business, using the two-track system devised by Senator Mansfield, while multiple filibusters are happening.

Another reason why we have not had this kind of crisis before is because Senators in the past realized that the Senate has an obligation to give its advice to the President, regarding nominees submitted by the President. Senate Rule 31, Section 1 explicitly says that the Senate provides its advice by conducting an up-or-down vote, and this the Democrats now forbid. The Republicans may soon become complicit in honoring a "right" that does not exist: the "right" of a Senate minority to prevent the full Senate from ever having a final vote on a presidential nomination.