ConfirmThem

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

The United States may be on the verge of permanently giving a minority of 41 senators power to reject presidential nominees. That would mean senators representing the 21 least populous states could demand whoever they want to serve on the courts, in the cabinet, or even as vice president if a vacancy should arise. The senators from those states represent less than 12% of the population of the United States. Senator Edward Kennedy says that GOP action to restore the nomination status quo might make it difficult for the Senate "to function in any meaningful way for the rest of the session." What a small price to pay in order to maintain the checks and balances that have worked for over two centuries.

Whether or not this impending shift in power is constitutional, it certainly is unwise, and would greatly shrink the pool of candidates who will have any chance of being successfully nominated to high office. This impending shift in power also plainly violates Senate Rule 31, which requires a majority vote "when a nomination is confirmed or rejected....by the Senate." Make no mistake about it: the minority is now seeking power to "reject" nominees. Just as the president of the United States can use a "pocket veto" to reject legislation by inaction, so too the Senate minority now wants the full Senate to reject nominations by inaction, thus forcing nominations to expire at the end of session (this is dramatically different from a nomination that expires merely because the full Senate has not gotten around to considering it). Everyone recognizes that the Fortas nomination in 1968 was debated for less than a week, and was voluntarily withdrawn, instead of expiring at the end of the session.

The Senate minority now wants the full Senate to reject judicial nominees without an up-or-down vote. While it is true that Senate Rule 28 allows the Senate to "reject" certain conference reports without an up-or-down vote, such a treatment of judicial nominees has never occurred prior to the present presidential administration. It is therefore incorrect for the minority to say that they are simply doing their traditional duty.

If the Senate minority won't be content with filibustering for a week or a month or a year on each nomination, and instead demands power to filibuster forever, then the minority will have effected a silent coup. The Senate rules, fairly read, allow unlimited debate but with exceptions, and one of those exceptions is that unlimited debate cannot be used to intentionally force rejection of a nomination by the full Senate. Let's hope that the Senate majority will either change the Senate rules by simple majority, or will start enforcing the rules already on the books.

As for questions of constitutionality, former Carter and Clinton White House Counsel Lloyd Cutler was right when he said that a Senate Rule requiring more than 51 senators to be present to do business violates the Quorum Clause of the Constitution. Then there is also the constitutional question of whether the Senate's rulemaking power includes power to make rules for the Senate's executive business that have the effect of diminishing the power of the executive branch (while abrogating the tie-breaking power of the vice president with respect to that executive business). Plainly, the Senate Rules should be construed to avoid such a thing if at all possible, and that is an additional reason for understanding Rule 31 in the way I've described.