ConfirmThem

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

Hugh Hewitt recently interviewed Ralph Neas and Nan Aron about their plans to support filibusters of Supreme Court nominees:

[W]hen I asked both Neas and Aron whether they would opposed a Supreme Court nomination of Judges Michael Luttig, Michael McConnell and John Roberts, and whether they would support a filibuster of any of those three, they both announced opposition to Luttig and McConnell, and Aron also opposed Roberts while Neas leaned that way. The filibuster for the first two was endorsed by Neas, and for all three by Aron.

In other words, the Republicans have to realize that this fight cannot be avoided. Either they take it on and win, and President Bush gets to nominate and receive votes on circuit court and Supreme Court nominees of his own choosing, or the Dems will filibuster those nominees. There isn't any middle ground, and there isn't any compromise worth having. Either the Constitution is honored, or the Republicans acqueisce in a tortured reading of it to support the idea that the Founders intended 41 Senators to have the power to block all judicial nominees. If Senator Frist loses this fight, the GOP has lost the last election when it comes to the courts.

From a constitutional point of view, this whole situation is classic. It may well be that it's constitutional for a Senate minority to endlessly filibuster nominations, IF the minority is not usurping the President's nomination power. For example, it's okay for the minority to block a final vote due to a nominee's string of bank robbery convictions, but not okay to block a final vote merely because the nominee is not the specific person preferred by the minority. After all, the legitimate role of the Senate is not to extort nominations it likes from the President, but rather is to weed out unqualified nominees. And this gets us back to our favorite ill-fated duelist, the late great Alexander Hamilton, who politely anticipated that a Senate minority would screw up the confirmation process:

Thus 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.

The Senate majority needs to step up to the plate now, and stop the minority from usurping the nomination power. Reinterpret existing rules, or write a new rule, or write a new statute, or provide advice and consent by letter without a vote, or force a tied cloture vote that can be broken by the Vice President, or stage a real 24-hour filibuster, or whatever. Just do it, please.

By the way, Fred Knight of Weare, New Hampshire has a few words to say in response to filibustering Democrats: "If you don't have the votes to block a nominee in a fair and legal fashion, maybe you need to work harder at getting elected."