ConfirmThem

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

Senator John Warner of Virginia spoke about judicial filibusters via NPR on April 5. Here's what he said:

I've got to think about if the Republicans some day wake up and they're in the minority and how could they best exercise their judgment as to the composition of the judiciary in the minority.

It seems unlikely that when the GOP is in the minority, they will want to use a filibuster to kill a judicial nomination that has the clear support of a Senate majority. The GOP has never felt any need to do that in the past when they have been in the minority, so why would they insist upon doing so in the future?

More to the point, Republicans are now waking up every day in the majority, and yet are increasingly unable to exercise their judgment as to the composition of the judiciary, because the Democrats are insisting upon a veto. If Senator Warner helps to restore the role of the majority with respect to nominations, then he will be one of the Senators deciding whether controversial nominees like Miguel Estrada, William Pryor, Priscilla Owen, and Janice Brown are confirmed or not. But if the role of the majority is not restored, then Senator Warner will not be exercising any judgment about those nominees at all, because the Democratic minority will simply reject them regardless of how Senator Warner feels.

Of course, Senator Warner is right to be looking to the long term. The minority must have an expansive right to bring out facts and debate nominations with the majority. The minority Senators should even have power to bring the Senate to a grinding halt if they feel so strongly about a nomination, but the minority should not be able to bring the Senate to a halt FOREVER. At some point, there must be a majority vote on nominations that get to the Senate floor.

There are other long-term considerations too. Do we want the US Supreme Court and lower court judges to be drawn from a narrow pool of candidates that can please both sides? That would reduce intellectual diversity on the Supreme Court, and would open the judiciary to ideological screening and control by Senators.

Also, it's important for presidents to be able to shift the direction of the Supreme Court, because that way---in the long run---the surviving judicial precedents will be the ones that are firmly based on the objective meaning of the law, instead of being based upon one ideology or another.

Endless filibusters of legislation are fundamentally different from endless filibusters of judicial nominations. The former allow a minority to preserve the legal status quo by preventing enactment of new laws. In sharp contrast, the latter would allow the minority to alter the status quo by insisting upon nominees who will do their bidding. For example, a liberal minority could refuse to confirm any nominee who believes that the Constitution fails to protect bigamy. That's just one of many examples.

I hope that Senator Warner will arrive at the same conclusion that most other GOP Senators have reached: endless nomination filibusters are very harmful to our system of government, and must not be allowed to prevail.