ConfirmThem

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

As Andrew pointed out in a previous post, the New York Times has reported that Senators Warner (R-VA) and Byrd (D-WV) are discussing a plan to formally present to the President lists of acceptible nominees from which he should choose. The idea is to:

"bring into focus the importance of the word advice in the Advice and Consent clause� of the Constitution as part of a broader agreement “that will permit the Senate to move forward this Congress with its important business, while establishing a workable blueprint for the Senate’s present and future consideration of judicial nominees.�

If this account is accurate (and it may not be --- the Virginian-Pilot has a somewhat different spin), it would represent a substantial escalation in the battle over judicial nominees.
I am sending Mr. Warner the following letter to nudge him to think more carefully about his plan:

Hon. Senator Warner,
The New York Times reported rumors that you are working with Senator Byrd on a "plan to designate for the President a pool of qualified judicial candidates who might win confirmation more easily." I hope you will prove the rumors false. Such a plan would be worse than the current filibustering in every way.

1. The Democrats have been filibustering nominees precisely because they want the power to directly involve themselves in the President's Constitutional prerogative to nominate whomever he sees fit. Presenting lists to the President to choose nominees from would institutionalize that very power for them without them even having to pay a political price of obstruction. A plan to present a list of nominees to the President amounts to surrender in the minority party's attempt at a "constitutional revolution" (in the words of your esteemed colleague, Senator Arlen Specter). To concede this critical point would result in a worse situation than currently exists.

2. Injecting the Senate into the nominations phase (rather than restricting it to its historical and explicit constitutional role of offering "advice and consent" only AFTER the President has submitted nominations) would futher politicize the appointment process by injecting the politics into the process at an ealier stage.

3. Although there is some debate about whether the filibustering of nominees is unconstitutional, most would agree that it is not. However, for the Senate to inject itself into the nomination stage would be blatantly unconstitutional because the clear language of the Constitution restricts the Senate's role to the confirmation process as opposed to the nomination process: The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges." Constitutional scholars are nearly unaminous on that point.

4. The idea of the Senate creating a list of compromise candidates for the President to choose from was considered and rejected by the founders when they wrote the advice and consent clause --and for good reason. In Federalist Papers (76) Hamilton wrote at some length about the rationale for excluding the Senate from the nominations process: "I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. ...A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body." The "advice and consent" clause purposely restricts the Senate's role to post-nomination deliberations because compromise candidates tend to be mediocre. They achieve their "inoffensive" status through their hesitation to make clear decisions that might offend, even when the facts and the law dictate a clear decision that is bound to irk the losing party.

5. This radical, extra-constitutional change in the nominations process would be a direct attack on the office of the President. The administration would be right to step in and forcefully defend the constitution and the Presidency. The administration has played a quiet, restrained role in the filibuster debate thus far. However, given Mr. Bush's deep respect for the Office, I do not believe that he would idly watch the filibuster dispute escalate into a direct assault on the constitutional powers invested in the Presidency. The political storms currently surrounding the filibuster issue would pale in comparison to what will happen should you and other GOP Senators give serious consideration to Senators Byrd and Schumer's idea.

Senator Warner, I respectfully urge you not to escalate the political battle over nominations by encroaching on the constitutional power of the President to present nominations of his own choosing to the Senate. I also urge you not to abrogate your and the Senate's responsibility to offer advice and consent after nominations are submitted and urge you to vote to disallow the minority party to block appointments simply by refusing to allow the Senate to exercise its rightful power to consent.

Sincerely,

Dan Dalthorp