ConfirmThem

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

Earlier this month, Senator McCain sent a letter to a concerned citizen who had inquired about the “Gang of 14" deal. Among other things, Senator McCain said someone's not telling the truth:

We did not use the filibuster to block President Clinton's judicial nominees because we successfully prevented many of those nominees from coming to the Senate floor for a vote or from even receiving a hearing in the Senate Judiciary Committee. Please know that anyone who claims Republicans haven't prevented Democratic nominees who had the support of a majority of Senators from receiving an up or down vote on the Senate floor is simply not telling you the truth.

Despite what Senator McCain says, Republicans have never prevented any Democratic JUDICIAL nominee, who had the support of a majority of Senators, from receiving an up or down vote on the Senate floor. When President Clinton’s judicial nominees were languishing in committee, Democrats could have filed a discharge petition to get the nominees to the Senate floor --- they didn’t even bother to file a discharge petition, because they knew a majority of Senators very probably would have voted against the discharge petition. Likewise, the Fortas case is no precedent for perpetually filibustering majority-supported nominees.

Anyway, I hope the deal that Senator McCain helped negotiate continues to succeed. If not, the tradition of up-or-down votes for majority-supported judicial nominees really ought to be restored, by invoking the Constitution's provision that allows a simple majority to change the rules so as to prevent abuse of the filibuster.

As James Monroe said at the Virginia Ratifying Convention (on 10 June 1788):

He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. THE CONCURRENCE OF A BARE MAJORITY OF THOSE WHO MAY BE PRESENT WILL ENABLE HIM TO DO THESE IMPORTANT ACTS.

Monroe carried on this tradition as one of Virginia's first United States Senators. This majoritarian tradition for confirming judges, which endured for 215 years, should not be destroyed.

UPDATE: I should note that Senator McCain's letter also said this:

Senate rules specify that a two-thirds majority of Senators is required to change a Senate rule. That has been the practice here for many, many years. The "constitutional" or "nuclear" option would have changed the Senate rule on filibusters with only a 51 vote majority. I opposed trying to change a rule by breaking another rule.

Actually, the constitutional option has been used before. Tom Curry of MSNBC has written as follows:

There is precedent for such a rule change: on Feb. 20, 1975, by a vote of 51 to 42, the Senate lowered the threshold for ending a filibuster from two-thirds of those senators present (67 if all 100 were in the chamber) to 60 senators.

You wouldn't think such a thing ever happened, from reading Senator McCain's letter.