I've been leery about the "nuclear option". For those who don't remember, this is the solution proposed by many Republicans to overcome Democratic filibusters to our judicial nominees. There are various proposals, but they all boil down to that -- 50 votes on a nominee rather than 60.
I like the filibuster. For every good law that's delayed, a lot of bad or marginal bills get stilborn. I like slow, deliberative changes in law.
But today's OpinionJournal editorial has brought me over on this one. Here are a few reasons why:
1. Unlike, say, a bill on waterfowl or education, Congressional oversight of judicial nominees is a specific Constitutional responsibility. And the Constitution mandates 50 votes in this process. The filibuster is hamstringing the Senate in one of its enumerated duties.
2. The Democratic filibuster of appellate nominees is unprecedented. I have no problem exempting this novelty from the traditional filibuster.
3. Dem Sen. Robert Byrd used the same "majority-vote advice-and-consent" tactic four times when he was in power. So the "nuclear option" is a lot less radical than it seems.
Posted by Discoshaman at janvier 25, 2005 05:50 AM | TrackBack
The only reason the Democrats are filibustering is that the Republicans changed the the blue slip rule which had allowed them to oppose Clinton nominees in the 1990s from one to two blue slips when Bush was elected. There's a chart by Kevin Drum at http://www.calpundit.com/archives/002501.html. I am initially somewhat swayed by the argument from the Constitution(more on this later!), but think it's pretty rich in the mouths of Republicans and conservatives who spent most of the 1990s delaying (sometimes indefinitely) votes on judges with a filibuster of 1. Was it wrong then? Or is it only wrong when George Bush is doing the nominating?
The point is this: you really can't be a strict constructionist with Senate rules. The Constitution says very clearly in Section 5 clause 2 that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. " I think the filibuster falls under the category of "rules of its proceedings," right? Just like the fact of a Judiciary Committee itself is a rule of procedure (is it wrong for the J.C. to vote on nominees? If they fail to pass a judge out of committee is that a filibuster of 7, or whatever a majority of that committee is?) Furthermore, the Constitution (at least in my quick review!) doesn't mandate a majority advice and consent in the case of judges, in fact it is quite silent, though it does indicate that 2/3 of senators must consent to treaties negotiated by the president. (Section 2 Claus 2: "He 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." )
I'm nowhere near an expert on this, but as far as I can tell the only good argument left is the Argument from Byrd--and "but they did it!" just isn't too convincing.
Posted by: LeftTheCapitol at janvier 25, 2005 09:30 PM