ConfirmThem

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

Senator Arlen Specter said this today:

I think historically if you were to flash ahead 100 years from now, this controversy over judges would be minuscule. It would not be a major matter in the life of the country. But minority rights are.

There's no denying that minority rights are a critical feature of any successful democracy. Who would deny that the Bill of Rights is a wonderful thing? But by Senator Specter's logic, it seems that we would have to give a minority of Supreme Court justices a veto over every decision of that court.

Minority rights are vital, but the minority should not dictate every decision of our government. The Senate minority has some rights, doesn't have other rights, and the challenge is figuring out which are which.

For example, the 25th Amendment, Section 2 says that when there is a vacancy in the vice presidency, the president must nominate a vice president who is then confirmed by "a majority vote" of both houses. Does anyone seriously think a minority of Senators would be entitled to filibuster such a nomination FOREVER? That would violate an express right of the majority, enshrined in the Constitution. If Senator Specter is so avidly in favor of minority rights, he should at least acknowledge one or two majority rights as well, like that one in the 25th Amendment. Majority rights aren't always such a bad thing.

And if the Senator is willing to honor the majority rights in the 25th Amendment, how about the majority rights in US Senate Rule 31, Section 3?

Here's an excerpt from the 25th Amendment:

2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Here's an excerpt from Rule 31:

3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken. . . . 4. Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same. . . . 6. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President.

A BLITHERING IDIOT could see that both of these laws forbid a minority of the full Senate from rejecting a nominee. Not that I'm accusing anyone of being a blithering idiot, of course. It is worth keeping in mind, by the way, that stuff can be "rejected" by the Senate without a formal vote (e.g. see Rule 28). Likewise, presidents have been rejecting stuff for centuries by exercising a "pocket veto" (which essentially involves doing nothing).

The main question in the present situation is whether the Democratic minority has intended that these nominees be "neither confirmed nor rejected" which would be entirely legitimate, or instead whether the Democratic minority has intended that these nominees be "rejected by the Senate" which would be entirely illegitimate. The best people to answer this question are the minority leaders.

The Congressional Record shows that on November 6, 2003 Senators Reid and Leahy said the following:

Mr. REID. "Madam President, I direct a further question to my friend. Is he telling me then, in the waning days of this legislative session of the National Legislature that we are spending time on a vote that has already been taken--there will not be a single vote changed--when we have appropriations bills to complete, we have Internet taxation, and many other items we are trying to complete in a matter of days; that we are, for lack of a better description, wasting the Senate's time on a nomination that has already been rejected by the Senate?"

Mr. LEAHY. "Madam President, the senior Senator from Nevada is absolutely right."

Likewise, the Congressional Record shows that on January 6, 2005 Senator Durbin said the following:

Mr. DURBIN. "The majority leader did not mention this critical statistic when he spoke on Tuesday. I also take issue with his statement that `I seek cooperation not confrontation.' If he truly meant that, he would not threaten to change the Senate rules and traditions next month. If he truly meant it, he would have urged the White House not to re-nominate those nominees who were rejected by the Senate last Congress."

Senator Schumer is also on record, saying that, "To nominate judges previously rejected by the Senate is wrong." These statements show a plain intent to, in effect, violate Rule 31. IMHO