ConfirmThem

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

The Associated Press reports about Sen. Frist's remarks at the "Justice Sunday" event (full remarks will be posted later today):

Senate Majority Leader Bill Frist was telling conservatives on Sunday that judges deserve "respect, not retaliation no matter how they rule....I don't think its radical to ask senators to vote. I don't think its radical to expect senators to fulfill their constitutional responsibilities....Our judiciary must be independent, impartial and fair....When we think judicial decisions are outside mainstream American values, we will say so. But we must also be clear that the balance of power among all three branches requires respect --- not retaliation. I won't go along with that."

In his remarks, Frist singled out [Texas Supreme Court Justice] Owen for praise, possibly indicating she will become the test case for the expected showdown. "She has received praise from both parties....Justice Owen has also been a leader for providing free legal services to the poor. And she has worked to soften the impact of legal proceedings on children of divorcing parents....even though a majority of senators support her, she has been denied an up-or-down vote on the floor of the Senate.... Justice Owen deserves better. She deserves a vote."

In his remarks, Frist noted that some Republicans are opposed to ending judicial filibusters, fearing that they may someday want to use the same tactics against appointments made by a Democratic president. "That may be true. But if what Democrats are doing is wrong today, it won't be right for Republicans to do the same thing tomorrow," he said.

The AP story concludes with this:

Frist also said that the Democrats' filibuster against Bush's nominees was the first time ever that "a judicial nominee with majority support had been denied an up-or-down vote." Republicans held a Senate majority for six of President Clinton's eight years in office and frequently prevented votes on his court appointments by bottling them up in the committee, knowing the nominees would be confirmed if allowed to go to a vote by the full Senate. One nominee, Richard Paez, a district court judge when he was nominated, waited more than four years before being confirmed to the appeals court.

AP neglects to mention that, in the words of liberal scholar Mark Tushnet:

[T]here's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules --- on scheduling, on not having a floor vote without prior committee action, etc. --- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way.

This quotation comes from an exchange on a listserv for constitutional law professors; Tushnet was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and Tushnet was pointing out that there was indeed a difference. No reasonable person can dispute that this is the first time a filibuster has been used to deny an up-or-down vote for a judicial nominee having clear majority support. The Grand Rapids Press has an editorial on filibusters today:

Senators should examine nominees according to their own lights and vote accordingly. But that is very different than using a long-standing debate privilege to prevent the entire Senate from voting. Never before has the filibuster been used in this manner.

The remedy threatened by Republicans is unfortunate because it does cut into the Senate's free-debate tradition. But clearly that custom has been abused at the expense of the courts and the general public. The Republican change would enable a 51-vote majority --- not 60 as under current rules --- to end debate on judicial nominations and proceed to up-or-down votes.

Cal Thomas criticizes a New York Times editorial:

The Times editorial was titled ''Bill Frist's Religious War'' and claimed the group sponsoring the telecast is guilty of ''intolerance.'' It also asserted the judges Democrats may wish to filibuster are ''unqualified.'' Apparently the American Bar Association endorsement of these judges is no longer sufficient for the Times, which once believed ABA approval was the gold standard for determining the qualification of a candidate for the federal bench. The Times, which needs to take some medication and lie down for a while, also charged Frist with trying to confirm judges who would ''accept a theocratic test on decisions.''
....
For better, and sometimes for worse, ''people of faith'' have spoken to moral and political issues since before the founding of the nation. Why is the republic in danger only when conservative religious people speak and act? Why are only conservatives seeking to impose a ''theocracy'' and liberals are never charged with such motives?

And, in the San Antonio Express, a political science professor at Trinity University has an op/ed piece. His name is David A. Crockett:

Although mystifying to many, the filibuster is constitutionally sound when applied to legislation. Congress is the active agent in lawmaking, and if it wants to make that process more difficult, it can. The president's constitutional role in lawmaking does not kick in until Congress has completed its task, but at that point he has no choice --- he must act on what Congress sends him. His job in this arena is to check Congress --- to sign the bill or guard against what Alexander Hamilton called "the enaction of improper laws" through the veto. He cannot halt the process. That is as it should be, for lawmaking is at heart a legislative function.

Article II spells out executive functions. The Framers gave the president the responsibility to staff the nonelective positions in the federal government --- Cabinet officials, ambassadors and judges. The president is the active agent in the staffing process --- the originator and prime mover. If he wants to make the process more burdensome, perhaps through lengthy interviews or extraordinary background checks, he can. He has near-total power in this area. The Senate's job is to check the president --- in Hamilton's words, "to prevent the appointment of unfit characters" through the advice and consent process.

Some argue the Senate should be able to use the same tools in nominations that it does in legislation. However, a presidential nomination is not legislation. It is part of the president's function of providing steady administration of the law. It is inappropriate for the Senate to employ a delaying tactic normally used in internal business --- the construction of legislation --- in a nonlegislative procedure that originates in a coequal branch of government.

....

This does not mean the Senate should roll over for the president. The Senate should reject his nominees if they are "unfit characters," just as the president should veto bad bills. The problem with the filibuster is that it prevents final action on a process that originates in the executive branch. Nominations should be regulated by majority vote, and the Senate should give its advice and consent through that mechanism. Not only would such a move end minority obstruction of nonlegislative matters, it would also drive home to all citizens that elections have consequences. If you don't like the actions of the Senate majority, change it.

Professor Crockett is right.