ConfirmThem

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

I'd like to comment a bit about the analysis of Dr. Steven Taylor, regarding checks and balances. Some more needs to be said. According to Dr. Taylor, "The claim that checks and balances is under assault is ridiculous." But, it's not as simple as that.

Senator McConnell recently pointed out that, "Where this is headed is in the direction of 41 members of the Senate being able to dictate to any president who may be on the Supreme Court . . . . That is a bad idea." Obviously, separation of powers IS implicated here.

Senator Dole said basically the same thing, today: "This 60-vote standard for judicial nominees has the effect of arrogating power from the president to the Senate."

At first, when the Democrats started wailing about "checks and balances," I thought it was ridiculous, because checks and balances are all about balancing one branch of government against another, rather than being related to internal Senate machinations. HOWEVER....

After studying this thorny issue for long enough, it's now clear that checks and balances are very much involved, and that the Dems are the ones who are threatening that balance between the branches of government. When a Senate minority grabs the reins in the nomination process, this makes it much more LIKELY that the Senate will then improperly encroach upon BOTH the powers of the judiciary and of the executive. A Senate minority is much more likely than a Senate majority to want to improperly screen nominees for ideological conformity, inquiring how they will rule in particular matters, and extracting promises and commitments from the nominees. Doing all of that severely jeopardizes the independence of the judiciary; in some ways, it places the judicial branch under the thumb of the legislative branch. LIKEWISE, a Senate minority will be much more likely than a majority to try to coerce the President, by demanding that particular people --- or types of people --- be nominated by the President; that usurps the nomination power, and in some ways places the President under the thumb of the legislative branch. SO, CHECKS AND BALANCES ARE VERY MUCH INVOLVED.

Senator Specter alluded to these separation of powers problems in a recent speech. Of course, Senator Reid has been saying the exact opposite: that preserving the filibuster on nominations is essential to the preservation of checks and balances. However, that hardly squares with Reid's previous remarks about checks and balances.

And, let's not forget what Hamilton said in Federalist #66:

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.

Hamilton had no such faith in the minority.