ConfirmThem

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

The Washington Post/LA Times just published an article with their partisan take on the debate about filibustering judicial nominees. Andrew mentioned that article this morning as well (as did Hugh Hewitt) and there is plenty more to talk about:

The president, who initiated the conflict by renominating judges whom Democrats had blocked during his first term and demanding new votes this year, is essentially guaranteeing a showdown that is as much about the power of the presidency as about Democratic obstinacy

Hmmm.... "The President...initiated the conflict"? Aside from that peculiar perspective, the authors (Jim VandeHei and Charles Babington) do surprisingly get it close to right. Really, though, the battle is more about the power of the Presidency than it is about Democratic obstruction --- not Bush's presidency, but the office of the President in general. The politics of the day will change quickly, but change in the long-practiced balance of power between the Senate and Presidency (which the Democrats are aggressively pursuing by their use of the filibuster in the confirmation process) will be lasting and, ultimately, much more important than current political winners and losers.

Earlier, I had been critical of the President for appearing not to defend his Office against the Senate Democrats' assault. However, by re-submitting the previously filibustered nominees, he is indeed actively engaged in the fight to preserve the balance of power between the executive and legislative branches. Kudos, Mr. President, for engaging the fight (but certainly not "initiating" --- the Democrats' filibusters were the initiation of this particular battle).

The framers explicitly and unambiguously gave the President the power to nominate and the Senate the power to confirm or reject. They gave the President sole power over nominations because they reasoned that assemblies are too prone to deal-making and compromise to appoint outstanding jurists. They argued that because outstanding jurists tend to make clear decisions and clear decisions are bound to offend some factions, compromise candidates would likely be "moderate", mediocre, unwilling to make clear decisions. That's why Hamilton warned against giving the Senate a say in nominations (as distinct from their veto power in the confirmation process after the President makes a nomination). Despite Hamilton's warning and the clear text of Constitution, Senate Democrats are using the filibuster to allow a minority of Senators to muscle their way into the nomination process (as distinct from the confirmation process). The strategy is outlined nicely by People For the American Way, who promote the filibuster to force the President to "engage in the kind of consultation and compromise that would result in the nomination of more moderate nominees." In this way, Senate Democrats are aggressively encroaching on the just and reasonable, Constitutional power of the President. The President does recognize the Senate's power grab engineered by the Democrats (and People for the American Way) and has properly engaged in the fight by re-nominating a slate of previously filibustered candidates, by publicly speaking about the issue, and by behind-the-scenes discussions between high-level administration officials (in particular, Rove, Cheney), but it does appear to be time for the President himself to get more personally active in the discussions because the stakes go well beyond the nomination of a few judges.

They continue:

This is being done to ... help a president achieve what he wants to achieve," said former Rep. Mickey Edwards, R-Okla., now a scholar at the Aspen Institute. "It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient."

No. The basic framework of the system of government was to give the President the power to nominate and the Senate to act to either confirm or reject, not refuse to act on executive branch business. If the President refuses to act on a piece of legislation that congress sends him, the bill automatically becomes law. Why on earth should the Senate then be allowed to block the President's business by inaction? The answer is that it should not be. Historically, the Senate had never refused to act on judicial nominations on the floor until this current crop of aggressively partisan and Constitutionally-challenged Democrats began to routinely filibuster nominees with whom they had ideologically differences.

The article continues:

If the filibuster is eliminated for judicial nominations, Bush would enjoy greater latitude in filling vacancies on appellate courts.

Eliminating the filibuster for judicial nominations would restore to the President the power to nominate judges and return the Senate to its power to advise and consent (rather than its current, inflated power that gives a minority the power to block nominees by preventing the majority from acting).

And:

"It certainly has the potential to reduce the Senate's power vis-à-vis the president," said Carl Tobias, a University of Richmond law professor. "It's one less restraint."

It would be well to reduce the artificial, counter-constitutional power that the Senate now exercises over the executive branch to the time-tested balance envisioned by the framers and practiced for two centuries before the Senate's recent assault on Presidential power.