Dangerous Dan

One of the Republican talking points in support of the "nuclear option" that would take away the Democrats' ability to filibuster judicial nominees is that there's nothing in the Constitution that requires a 3/5 majority to achieve cloture. Indeed, the Constitution is relatively mum on parliamentary procedures and leaves it up to the Congress. Article I, Section 5, clause 2 says, "Each House may determine the Rules of its Proceedings…"

The Dems now have their own talking point in which they say that the Constitution doesn't guarantee a judicial nominee an up or down vote on the Senate floor once the person gets out of committee. Senate minority leader Harry Reid is the latest to say this.

Reid says that the Constitution does not require that judicial nominees get confirmation votes, allowing the minority to block them. Bush and other Republicans who argue otherwise "rewrite the Constitution and reinvent reality," he said.

It's true that an up or down vote isn't Constitutionally mandated, but this seems rather pointless. I don't think it occurred to the Founding Fathers that judicial nominees would be filibustered so as to prevent a vote on confirmation. This is all the Constitution says about judicial confirmation and it's Article II, Section 2, clause 2:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Rather bare bones, isn't it? About 95% (if that little) of Congressional procedures are not specifically outlined in the Constitution. The chambers merely formed their own parliamentary procedures, per the Constitution, and much of how those procedures are viewed is by way of precedent and tradition. Thus, when Reid says the Constitution does not require there be an up or down vote, then he might as well go on and say that it also doesn't require many other things Congress does. Changing those procedures that are not Constitutionally defined would also not be “rewriting” the Constitution like Reid claims, it would actually be an exercise of Constitutional powers in that the Senate is determining a rule of its own proceedings.

I'm not in favor of the nuclear option and Frist should resist the political pressure to go that route. I think the minority party should be able to filibuster whatever they want. I also think, however, that preventing a vote on judicial nominees is a piss-poor use of the filibuster. Throughout American history, the purpose of the filibuster was to prevent the majority from pushing through laws that the minority especially disliked but couldn't defeat in a vote. The Senate's role in confirmations was to make sure that a true scoundrel or low quality jurist didn't make it to the federal bench. Ideology didn't play such a large role and it was generally accepted that the President had the discretion to appoint whomever he wished.

The Dems have now turned things around and are trying to prevent decent quality judges from taking the bench purely because they disagree with the nominees' ideology. They say that they've approved a large number of Bush's nominees and are only trying to keep out a few extremists, but this is disingenuous. The ones they're holding up have been appointed to the higher, more powerful circuit courts. All those judges the Dems have magnanimously approved were for lower courts.

The claim that these judges are extremists is also weak. They merely have strict interpretations of the Constitution and of laws, which the Dems dislike. It also hasn't been shown that the jurists' conservative ideologies have polluted their decisions or actions. Bill Pryor, for example, thinks abortion is an abomination but he repeatedly supported it as Attorney General of Alabama and, despite being a conservative Christian, he enforced court rulings to remove Judge Moore's 10 Commandments monument and has worked for civil rights though he’s a dreaded white southern male. He has full bipartisan support in his home state as well. The nominees are not extremist and not out of the mainstream. They’re just out of the liberal mainstream, which in the eyes of liberals makes them extremists.

If anything, filibusters should be changed from the current procedural delay into the Mr. Smith style holding the floor, reading the phonebook, talking 'til your hoarse variety. A filibuster is an extreme tactic in any usage and it should have the proper good and bad consequences. If the electorate agrees with your stance, then they'll see the sacrifice as noble. If they don't, they'll see the tactic as foolish and a waste of Senate time. It also creates the real-life illustrative drama that the public should see in such situations.

As it is, the Dems are merely hoping they can draw out the confirmations for another four years… not beyond the pale since they’ve already managed it for the past four. They’ll bide their time and hope a Dem gets elected President in the next election and they’ll have liberal jurists to confirm. I imagine that if at that time the Repubs defeat such nominees in committee or in a floor vote (both normal and not filibuster-related, mind you), the Dems will stumble to their fainting couches talking about how the Repubs are being obstructionist and holding back judges from the federal bench.

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