Patterico's Pontifications

11/23/2004

Defeating Judicial Filibusters: The “Conventional Warfare Option”

Filed under: Judiciary — Patterico @ 1:18 pm

Republicans, frustrated with Democrat obstructionism of President Bush’s judicial nominees, have publicly discussed a “nuclear option” for ending filibusters. The option under consideration would use a parliamentary maneuver to accomplish a rules change eliminating the power to filibuster judicial nominees.

The “nuclear option” faces major obstacles, not the least of which is its unfortunate name. The American public is understandably loath to resort to a “nuclear” solution to any problem, unless it is demonstrated to be the absolute last resort, to be employed only in the most dire circumstances.

The obvious question arises: is there some way to win this war without resort to the parliamentary equivalent of nuclear weaponry? In short, is there a “conventional warfare option” for ending filibusters of judicial nominees?

I believe there is.

My proposal is premised on a fundamental and indisputable fact: never in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate. All of President Bush’s nominees would win a floor vote if one took place. Preventing a floor vote under these circumstances is unprecedented.

I propose that the Republican majority highlight this fact, by forcing a floor vote on a non-binding resolution of support for each nominee who has been the victim of a Democrat filibuster. The Republicans could force this vote by using the same parliamentary tactics that they propose to use to force a floor vote on the nominations themselves. But the resolution I propose would not have any real-world effect, other then to force all 100 Senators to state publicly whether they would support a particular nominee — yes or no.

Such a proposal would accomplish several goals.

Most importantly, I expect that each of President Bush’s nominees would garner a “yes” vote from a majority of Senators. This would demonstrate in a concrete way that each nominee would be confirmed if a floor vote were allowed. It is one thing to make that assertion. It is quite another to prove it with an actual vote.

When the public sees in the headlines that Judge “Smith” received support from a majority of U.S. Senators, many will initially assume that Judge Smith has been confirmed. When people are told that, no, Judge Smith is still awaiting confirmation, the public is going to want to know why.

And then, just maybe, people will start to get it.

This procedure would make this point in a manner that would not come across like bullying. Rather than steamrolling Democrats and pushing Bush’s nominees through the confirmation process, Republicans would be seeking merely to communicate information to the public, concerning the level of support Bush’s nominees enjoy on the Senate floor.

Because this procedure is less confrontational than the “nuclear option,” it would be palatable to a larger segment of the public — and also to more liberal Republican Senators, who might shy away from a more direct, brass-knuckles maneuver like eliminating the judicial filibuster altogether. By getting “yes” votes from these Republicans, this procedure would demonstrate to Democrats that Republicans have the muscle to get even their most liberal Senators solidly behind George Bush’s judicial nominees.

Precisely because this procedure would make such an effective political point, Democrats would likely fight it tooth and nail. They will probably even try to filibuster it. And if their filibuster is ruled out of order, they will complain bitterly.

Fine. Let them. Such noisy complaints will only bring more publicity. And Republicans have a ready rejoinder: what are the Democrats afraid of? The votes won’t confirm any judges. They will simply answer the question whether these judges really have majority support on the Senate floor.

Are the Democrats really scared to let the American people hear the answer to that question? That is the question Republicans should be asking. It is a question that Democrats cannot answer.

I believe that if this procedure is employed, and President Bush’s nominees are concretely demonstrated to enjoy majority support in the U.S. Senate, the filibusters will collapse under their own weight.

And Republicans will have won by conventional means — without risking the fallout that inevitably comes with the use of a “nuclear option.”

UPDATE: Thanks very much to Howard Bashman for the link.

UPDATE x2: Beldar has an excellent post supporting the nuclear option. I wonder what he would think of my idea of preceding the nuclear option with conventional warfare, to see if it is enough to break the filibusters.

UPDATE x3 (5-3-05): Thanks to Mickey Kaus for the link. I have reopened comments on this thread.

UPDATE x4 (5-4-05): Thanks to Glenn Reynolds for mentioning the proposal, which he calls “just a bit too clever.” I respond here.

I should stress that this proposal is not necessarily a substitute for the nuclear option. It may well be a precursor to it — but one that helps change the terms of the debate in Republicans’ favor.

In this sense, the proposal is like a series of air strikes at the beginning of a war. It may not win the war — but even if it doesn’t, it softens up the enemy for the eventual attack.

UPDATE x5 (5-5-05): More on the reasoning behind this proposal here.

37 Responses to “Defeating Judicial Filibusters: The “Conventional Warfare Option””

  1. That’s an excellent approach.

    Forcing just an honest filibuster is apparently tough for our esteemed Senators though.

    Al (98e4ad)

  2. Something like this should be tried, if only as prelude to the “nuclear option.”

    Note: the Nulcear Option, for those that just tuned in, is a chair’s ruling on confirmation filibusters. Since in the Senate, the Chair is the Vice-President, if he rules that there can be no confirmation filibusters, it takes only a tie vote to effectively change the Senate rules. Normally it would take 2/3rds.

    This is viewed with some concern by Republicans since someday they might be on the receiving end of this kind of maneuver.

    Such parliamentary procedure is NOT unheard of — using a chair’s ruling to overturn a rule that impedes progress is actually anticipated in Robert’s Rules.

    Kevin Murphy (6a7945)

  3. Patterico,

    I’m not sure you can shame the Dems, who would merely explain away their non-binding vote as a “vote for continued discussion and engagement, which the Republicans, by demanding a final vote, now refuse to engage in.” With MSM support, this’d prob work, too, sigh.

    Dunno if I have a better idea tho, so maybe it’s worth a try anyway, just to see what’d happen. For sure, tho, the R’s should nominate their most conservative candidate first; otherwise the D’s would let a more lib candidate thru and then cite that as proof of their reasonableness.

    Perhaps it would help to start renaming the “nuclear option.” Since when is a simple rule change – and one that merely anticipates Senators doing the Constitutional duty – considered “nuclear?”

    Huzzaba calling it the “Let’s Take A Vote” option instead? That name is not only quite accurate, it would also hilite that Dems are, in fact, trying *not* to vote, a description of the situation that is relatively easy to get across to the public. Talk to most people about Robert’s Rules Of Order, or filibusters or committees, and their eyes glaze over.

    Talk to them about “Let’s Take A Vote” and they’ll get it immediately.

    ras (edf21c)

  4. How about a neutron bomb alternative? It would be a shame if the building get destroyed.

    Note to Michael Kinsley: no, the above statement does not mean it’s OK to quote me as saying we had to destroy the U.S. Senate to save it.

    Xrlq (6c76c4)

  5. Kevin, I agree that “conventional” option should be tried as a prelude to the “nuclear” option.

    “This is viewed with some concern by Republicans since someday they might be on the receiving end of this kind of maneuver.”

    Is there the slightest doubt in your mind that if the situation were reversed, that is a Democrat president and a Democrat majority that was being frustrated by a minority from confirming several appelate judges, that the Dems would go “nuclear”?

    Stu707 (b388ac)

  6. The resolution vote idea needs to be carried to its logical conclusion. Once a resolution has been passed to confirm a nominee, the result should be put into a letter and sent to the Chief Justice with a copy to Pres. Bush. The cover letter should say something like “..a majority of the Senate, acting in its constitutional role, has consented to the nominee…”. The Constitution does not say how a majority of the Senate must register its consent to a nominee. Why not just use a resolution?

    J. King (0e95b0)

  7. Thanks for the link. I like your idea, though!

    Beldar (cd065f)

  8. I’m not done linking it yet!

    Patterico (756436)

  9. Let The Sunshine In, Bill Frist

    The Washington Post complains that Speaker of the House Dennis Hastert has started to enforce a new policy that he calls the “majority of the majority” rule. Hastert says that he would not allow the Defense Department/ Homeland Security bill hit the floor this week because even though there were enough combined Democratic/ Republican votes to pass it, there were not enough Republican votes.

    The New York Times complains that Senator Frist wants to abolish the centuries-old Senate filibuster rules, so that any nut-job that President Bush cares to nominate will pass the Senate. One of the conservative pundits, I don’t remember who, suggests that until the filibuster rules are changed, the Republicans should hold non-binding votes on Republican judges who are stuck in Democratic filibusters.

    Of course, House Republicans have not shown themselves too willing to vote on many things publicly. The vote on the internal rule changes that will allow Tom Delay to retain his chairmanship after he was indicted was done in a closed session. Congressmen who find it expedient to lie to their constituents about their votes are now able to do so.

    As an old political science major, I know that a good deal of politics consists of running for cover. My fellow liberals worry about what will happen when the Supreme Court overturns Roe –v- Wade, but the fact is that the Republican Senate has had the votes to overturn Roe –v- Wade for a while now. Republicans don’t want to take the political heat of taking decades-old rights away from women in the United States on the same day they are giving them to the women of Iraq and Afghanistan. They are looking for a Supreme Court to hide behind.

    It’s easier for Republicans to bitch about liberal judges making things impossible. Or bitch about a Supreme Court that has, I think, 7 Republican appointees and 2 Democratic appointees. Certain people, and a lot of them are Senators, still cannot understand that the North won the Civil War. As a result certain individual rights exist in the Constitution, and these rights were most definitely not the intent of the Southern slave-owning framers. These rights were exercised, alas, not to enforce racial equality, but to fend off the turn-of-the-century robber barons, like George Bush’s great-grandfathers and their friends, who wrecked this country so badly that it was a day away from turning either fascist or socialist. The only way you can overturn these individual rights, and undo the results of the Sixties and the later New Deal, is to amend the Constitution.

    Frist wants to take away the right of Northern Democrats to filibuster against the rare Republican judge who thinks that the United States should look just like it did in the “good-old days” of slavery, and lynching, No Irish Need Apply and child labor, and wife-beating, 12-hour days and the workhouse in your old-age, and one rich man for every 1,000,000 starving men (I know, the shoe was on the other foot, once upon a time, and Northern Republicans filibustered against racist Southern Democratic judges.) Thanks to the filibuster, Republican Senators in swing-states (they still exist) can hurl invective at the “liberals” who are obstructing the “will of the people.” These Republicans are screaming behind a smoke-screen, safe in the knowledge that they will never have to go on record in favor of a nutty judge, or against a woman’s right to choose, or for or against any number of things that would make it hard for them to win re-election.

    Now Frist and Hastert want to blow the cover of their fellow Republicans. Let the Sunshine In!

    B After The Fact (a9eb8b)

  10. Show Trial #25 – Josef Stalin Edition
    Josef Stalin Edition Stalin was a Bolshevik revolutionary and the second leader of the Soviet Union. While his economic policies resulted in the Soviet Union’s development into a major industrial world power, his rule was marked by totalitarianism and…

    The Politburo Diktat (4c4fc9)

  11. POLITICS: 11/28/04 Links
    *Patterico has a tremendous idea: Senate Republicans should introduce a non-binding resolution of support for each of the filibustered judicial nominees, so as to put on the record the fact that they would be confirmed if granted a floor vote….

    Baseball Crank (88d88f)

  12. “[N]ever in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate.”

    A very deceptive statement. During the Clinton Administration, the Republican dominated Senate used many other tactics to prevent the President’s nominees from ever seeing a floor vote, such as keeping the nominee bottled up in committee.

    The fact remains that the Democrats in the Senate have approved more of President Bush’ judicial and diplomatic nominations in the last five years than the Republicans in the Senate approved President Clinton’s nominations in eight years. All this whining about filibusters is nothing more than that: whining.

    Paul Gadow (1525b2)

  13. My point is very simple: When else is a minority supposed to use a filibuster but when a majority tries to shove judges or laws down their throats? I realize that is an emotionalized putting of the question, but when is a filibuster called for except when the majority would otherwise win? It is unnecessary when one already has the majority votes, and pointless if one lacks the votes to maintain the filibuster. Ergo, when one posits a shame ritual, such as yourself, you are merely begging the question. We already know you have the votes, the question is whether the minority should be allowed to keep their tool to put a wrench in the works. Your shame ritual, while perhaps convincing to a public working on an emotional, banal level, actually begs the question of minority rights when thoughtfully considered. You have the votes, so what?????????

    The Stuff (866b69)

  14. As a Democrat, I like this idea, too. Because the flip side is, if most Americans are ok with the Democrats stopping a select (and reasonably small) group of nominees, as the polls suggest, then they won’t care about a merely show vote.

    And as a moderate, I like this idea (in all seriousness) because when the partisan tables are turned, as they will inevitably be someday, I don’t want to see the Democrats shoving through liberal extremist judges any more than I want to see the Republicans shoving through some of the conservative extremists they are trying now. I can’t understand why most Republicans are so short-sighted on this: the nuclear option blows up everything.

    Matt (1194e8)

  15. This idea, while clever, cannot work procedurally. According to Senate rules, any matter may be discussed until all Senators are done talking or until cloture is invoked. The “nuclear option” is to make a point of order saying that the Senate rules themselves, as they are being applied to judicial nominees, are unconstitutional because it prevents the Senate from passing its advice and consent on the nominees as the Constitution requires. The Constitution gives the Senate an affirmative responsiblity to pass advice and consent upon the nominees. Because of this requirement, the use of Senate rules to block the Senate from carrying out of this responsibility, as applied, is unconstitutional.

    What you have proposed is that the Senate consider a non-binding resolution in support of a nominee. After the Democrats filibuster it, a Republican Senator would make a point of order saying that Senate rules, as applied to this non-binding resolution, are unconstitutional because…? Well, there is no such reason. There is no affirmative responsibility for the Senate to vote on a non-binding resolution concerning nominees. (The only coherent point of order that would conclude that the filibuster of such a non-binding resolution is unconstitutional would result in declaring that the filibuster itself is unconstitutional–a measure far beyond what you intend to propose.)

    Simply put, it doesn’t work. If you have a way to get around this, though, I’d like to hear it.

    Dan Larsen

    Dan Larsen (51d0dd)

  16. Matt says “I don’t want to see the Democrats shoving through liberal extremist judges…I can’t understand why most Republicans are so short-sighted on this: the nuclear option blows up everything.”

    So, given that the Democrats have used EXACTLY this parliamentary “nuclear” option before, with regards to (wait for it) that’s right, filibuster…Do you really believe they would not do it AGAIN if the shoe were on the other foot?

    Or, more directly, suppose the R’s do NOT pull the trigger. Then, when President Hillary nominates her first 10 “liberal extremist judges”, and the R’s do what Matt wants and filibuster them (because, Matt believes that to filibuster judicial appointments is NOT an affront to the Constitution)…

    Are the Dems going to be as considerate of the “importance of minority voices”?

    Hell no. They’d pull the trigger in the blink of an eye — and in THEIR case, we’ve got proof: they’ve done it before. In 1975. Under Byrd.

    Chuck (02c3ab)

  17. Dan Larsen,

    I don’t see the problem. Whoever rules on the point of order can declare that the non-binding vote is one method of rendering “advice” — as part of the Senate’s constitutional duty to render “advice and consent.”

    The Constitution does not specify how this function must be fulfilled, and any such ruling on a point of order would be a political question insulated from court review.

    Simple.

    Patterico (756436)

  18. “[N]ever in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate.”

    A very deceptive statement. During the Clinton Administration, the Republican dominated Senate used many other tactics to prevent the President’s nominees from ever seeing a floor vote, such as keeping the nominee bottled up in committee.

    Name one nominee who didn’t get a floor vote, but had clear majority support.

    You can’t.

    Now who’s being “deceptive”?

    Patterico (756436)

  19. I suppose that’s a clever way of getting around it, at a bare bones procedural level.

    I have two remaining objections, however. First, such resolutions are entirely without precedence. The United States Senate has never rendered its “advice” using such a resolution; the notion that blocking such a resolution is unconstitutional almost verges on absurd.

    And I’m not just talking about judicial review (of course it could not be subject to it) but rather to the principle that each branch is responsible with regard to interpreting the Constitution (i.e. legislators should reject legislation if they believe it unconstitutional even if the courts would uphold it, the same for the President).

    The responsibility of Senators to interpret the Constitution honestly is no less than the courts. To render such an absurd, obviously political Constitutional ruling such as you suggest would be a serious violation of that responsibility.

    Second, as a matter of Senate precedence, what exactly would be the distinction between the option you suggest and the nuclear option? If the Senate were to rule that using Senate rules to block an unprecedented “advice” resolution is unconstitutional, how is that not identical to ruling filibusters of the consent unconstitutional? You must admit the absurdity of the notion that the ruling unconstitional a filibuster of an unprecedented “advice” resolution does not contain a ruling that a filibuster of consent is unconstitutional also.

    Dan Larsen (51d0dd)

  20. Oh, c’mon. Article II, Section 2 calls for the President to name his appointees “by and with the Advice and Consent of the Senate.” It doesn’t call on the Senate to go out on its own and “advise” or “consent” to anything else independently of that process. I suppose one could stretch the “and” part just a tad to conclude that nonbinding resolutions are “advice” but only the final vote is “consent.” That might save your allegedly “conventional” alternative to the “nuclear” option, but only by asking voters to accept an extremely tortured theory of constitutional law, which holds that one Senate may constitutionally restrict another’s ability to “consent,” but not to “advise.”

    In any event, I think it’s more than a little misleading to call your proposal the “conventional warfare” option, when it depends on exactly the same theory that the “nuclear” option does: declaring the filibuster of any part of the judicial confirmation process unconstitutional. If, rather than bombing two major cities, the U.S. had instead dropped two A-bombs on the Japanese countryside and hoped Hirohito took a hint, it still would have been the nuclear option.

    Xrlq (c51d0d)

  21. Dan,

    I agree that Senators have an independent obligation to follow the Constitution, even if many Senators act like they don’t.

    But I strongly disagree with your opinion that it would be an absurd ruling. Why? Just because rendering advice that way is unprecedented? So is filibustering judicial nominees who enjoy clear majority support.

    What is unconstitutional about seeking a way to address an unprecedented and unconstitutional filibuster in a manner that is less likely to cause a political crisis?

    Sure, the logic would also compel a ruling that these filibusters are unconstitutional. But the point of order would arise in connection with an attempt to bring the non-binding resolution to the floor — not a binding vote of confirmation. So the point of order as to the non-binding vote would not require a ruling on the nuclear option per se — at that time.

    It’s simply a way of making the political point without seeming like a pack of bullies. And I don’t see anything absurd or unconstitutional about it — at all.

    Patterico (756436)

  22. That might save your allegedly “conventional” alternative to the “nuclear” option, but only by asking voters to accept an extremely tortured theory of constitutional law, which holds that one Senate may constitutionally restrict another’s ability to “consent,” but not to “advise.”

    X, you are making the same mistake Dan makes. I am not suggesting that the nuclear option be ruled out at the same time the conventional warfare option is employed. Not at all. It must remain as a background threat, ready to be employed on the same exact theory.

    I’m just saying: try this first. It looks a lot less like bullying, and that’s important.

    If we were worried about public opinion when we dropped the bombs on Japan, it would have been wise to drop them on the countryside. We would thereby show we have the power — but not incur the political costs of actually exercising it and looking like thugs.

    Go ahead and do your nuclear option if you must, but beware the fallout. I’m just proposing a sensible alternative. I really wish Republicans would consider it. And I’m as much of a hawk on getting conservative judges seated as anyone.

    Patterico (756436)

  23. You’re missing my point: your proposal is the nuclear option; you’re just saying to drop the nukes on a different target. If we were fighting World War II now, with today’s huge arsenal, we probably would drop the first couple of bombs on the enemy’s countryside. We didn’t do it then because we didn’t have that luxury then. And as regards the fake nukes that are Senate rules, it’s equally unclear we have that luxury now. That, plus the fact that while real nukes had the unfortunate side-effect of destroying millions of innocent lives, “nuking” the filibuster would not.

    Xrlq (c51d0d)

  24. It’s only the nuclear option if you allow it to be called that.

    We lost the terminology battle regarding what to call the tactic of forcing nominees down their throats.

    But we don’t have to call it “nuclear” if we’re just holding votes to tell the public where Senators stand.

    Conventional warfare option. Think about it.

    Patterico (756436)

  25. This is NOT an undisputable fact “never in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate.” WRONG! The Republicans filibutstered Abe Fortas’ nomination and prevented it from coming to the floor. (And this doesn’t include all the Clinton nominees who would have been confirmed had not the Republicans killed the nomination through holds and other tricks.) But of course, now that it can be used against it, they want to change the rules. Typical.

    zen_less (c125b7)

  26. Don Larsen,

    You wrote:

    After the Democrats filibuster it, a Republican Senator would make a point of order saying that Senate rules, as applied to this non-binding resolution, are unconstitutional because…? Well, there is no such reason.

    The only judge and jury for if there is no reason is a majority of the Senate. They could give the reason “because…. 42. And thanks for all the fish!”, the parliamentarian would rule against them, and the chair could refuse to accept the parliamentarian’s ruling, in which the Senate votes on the chair’s decision, in a vote that can’t be filibustered, where the majority wins.

    The fact that some guy named “Don Larsen” does not think there is a valid reason is completely irrelevant.

    I’ll point out that this is the exact procedure for the nuclear/constitutional option as well– the only difference is if it is to force the confirmation of judges or to get a non-binding resolution.

    I think at a minimum, the Republicans should float the idea. If you hear the liberals screaming about it, then you know you just hit a dog with the rock you threw.

    Gerry (fabde4)

  27. ps- as for if the Republicans would take a hit in the eyes of the public for ‘being bullies’ in forcing a vote on a non-binding resolution in this manner, you may have a point, but I doubt it. I think you would find:
    1) Left-leaners in the public will be outraged, but they already are, so no change.
    2) Right-leaners in the public will be happy
    3) Those in the middle will hear that the result of the action was… no change to the status quo since the judges were not confirmed, and yawn accordingly.

    Gerry (fabde4)

  28. Zen,

    Fortas’ nomination did not even get a majority to vote for cloture. That makes it pretty clear that he did not have majority support for confirmation.

    Besides, that filibuster was 1) for a grand total of four days, not weeks on end, 2) had nothing to do with ideology but rather corruption, 3) to give time to truly investigate those charges, 4) over charges of corruption that turned out to be proven correct– he eventually resigned from his seat on the Supreme Court over them, and 5) not to prevent him from sitting on any court– he was already a Supreme Court Justice. His nomination was to be the Chief Justice.

    Gerry (fabde4)

  29. This is NOT an undisputable fact “never in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate.” WRONG! The Republicans filibutstered Abe Fortas’ nomination and prevented it from coming to the floor. (And this doesn’t include all the Clinton nominees who would have been confirmed had not the Republicans killed the nomination through holds and other tricks.) But of course, now that it can be used against it, they want to change the rules. Typical.

    zen_less:

    Your proof that any of these judges had clear majority support?

    Did you even read what I wrote?

    Patterico (756436)

  30. zen_less:

    If you would like to learn more about the Fortas filibuster — and it appears you do need a history lesson — consult my post here.

    Patterico (756436)

  31. I think you misunderstand me. I am critical of your proposed option not because I support the nuclear/constitutional option, but rather because I am dubious of it.

    The Senate has given its own rules considerable deference–a deference to which they are entitled under Article I. For example, according to Senate rules, a quorum–required under Article I for business to be transacted–can only be determined by a roll call (no counting) and a quorum call only occurs if a Senator demands it. This means that all you have to do is establish a quorum some time during the day, and you can continue conducting business–for according to the roll call, a quorum is present–even though anyone watching C-SPAN2 would be able to tell you that the chamber’s practically empty.

    While I find the Democrats’ behavior reprehensible, I am not certain that their behavior is unconstitutional. Similarly to the example above, each Senator has the right to speak twice on any legislative day upon any issue for as long as they deem necessary. Were the Senate to go into continuous session (a “legislative day” can run for as long as anyone wants it to), the Democrats would run out of speeches in a month or two. The Senate rules enacted under the Senate’s responsibility under Article I probably take precedence over the affirmative responsibility for advice and consent in Article II–especially because, strictly speaking, the consent is not being blocked, it is only being delayed. It is only because the Democrats’ behavior has been so outrageous that I’m willing to even consider it.

    As to why this is important, it is because each branch of the government is responsible for interpreting the Constitution honestly. If the Senate were to render a Constitutional judgement for political reasons rather than legal reasons, we should find that behavior just as objectionable as we do when the courts do so. After all, the Supreme Court could write an opinion consisting of “42…and thanks for all the fish. The ruling of the Sixth Circuit Court of Appeals is hereby reversed.” Such behavior, while legal, would be obviously, and equally, outrageous.

    You must admit that the notion that a resolution you propose is “advice” as the Constitution considers is not very convincing–especially given that the Senate has been required to provide its advice on every nominee ever nominated, and it has never done so in the manner you suggest.

    Your proposal adds an entire layer of dubious legal reasoning on top of an already questionable legal foundation. While it would be politically less explosive than the Constitutional/Nuclear Option, constitutionally and legally it is even more radical.

    Dan Larsen (51d0dd)

  32. If I’m not mistaken, this is a Sense of the Senate resolution. If you run a google search, there are thousands of them.

    Here’s the right form for the resolution:
    “Resolved that it is the Sense of the Senate that the President, in order to improve harmony among the branches, should withdraw the nomination of X.”

    Call the sucker up and vote the sucker down. Unless the Dems have the nerve to filibuster it.

    Doing this negatively is nice because it shows that the Sense of the Senate is the opposite of what the filibuster is effecting.

    And if the Dems do filibuster it, it shows the public that they’ll do anything to keep the public from knowing the true level of support for the nominee.

    Geoffrey Barto (2915f8)

  33. Dan Larsen,

    I don’t find your logic compelling, at all.

    You say:

    The Senate rules enacted under the Senate’s responsibility under Article I probably take precedence over the affirmative responsibility for advice and consent in Article II–especially because, strictly speaking, the consent is not being blocked, it is only being delayed.

    Two problems there.

    First, consent is being blocked, not delayed. You’re obviously an intelligent and well-spoken guy, so I’m surprised you don’t know that.

    Apparently you haven’t been listening to Harry Reid, who turned down Frist’s offer of 100 hours of debate for each disputed nominee. When asked how many hours Democrats would require to debate Priscilla Owen’s nomination, Reid said: “there is not a number in the universe that would be sufficient.”

    In light of that fact, the assertion that the Senate’s Article II responsibility is somehow trumped by rules enacted pursuant to the authority of Article I makes no sense. Are you saying that Senators can willy-nilly violate the Constitution if they do so by making Senate rules??

    That argument makes no sense.

    As to why this is important, it is because each branch of the government is responsible for interpreting the Constitution honestly. If the Senate were to render a Constitutional judgement for political reasons rather than legal reasons, we should find that behavior just as objectionable as we do when the courts do so. After all, the Supreme Court could write an opinion consisting of “42…and thanks for all the fish. The ruling of the Sixth Circuit Court of Appeals is hereby reversed.” Such behavior, while legal, would be obviously, and equally, outrageous.

    I’ve already agreed with you on that general principle. But it has no application here.

    You must admit that the notion that a resolution you propose is “advice” as the Constitution considers is not very convincing–especially given that the Senate has been required to provide its advice on every nominee ever nominated, and it has never done so in the manner you suggest.

    I admit no such thing. Your argument is that giving advice this way is unprecedented. That may be — but it is a response to an unprecedented action by Democrats.

    If I point a gun at you, and you respond by shooting me, your action would be justified — even though it is unprecedented. It is my unprecedented aggression that caused your unprecedented response.

    I am simply suggesting a way for Senators to accomplish their advice and consent duty, under unprecedented circumstances in which a minority is trying to prevent them from exercising that duty.

    Your proposal adds an entire layer of dubious legal reasoning on top of an already questionable legal foundation. While it would be politically less explosive than the Constitutional/Nuclear Option, constitutionally and legally it is even more radical.

    For the reasons I have stated, I strongly disagree.

    Patterico (756436)

  34. First, consent is being blocked, not delayed. You’re obviously an intelligent and well-spoken guy, so I’m surprised you don’t know that.

    I said, strictly (i.e. legally) speaking. The intention is block the nominees, but the means is just a very significant delay…a delay which can technically be overcome by continuing a single legislative day until the Democrats have exhausted their 2-speech limit.

    Article I states very clearly that the Senate may make its own rules governing its conduct. The manner in which the Senate chooses to handle its responsibilities–such as advice and consent–are determined by the rules laid down at the first congress, as amended (the Senate is a continuing body, not a reconstituting body like the House; we are, technically, still in the first Senate). If it were part of Senate rules to require that the nomination forms be sent to the moon and back or that they must lie underground for 8 months, such rules would be protected by the Constitution provided that the Senate could still, ultimately, carry out its responsibilities.

    I’m not saying that the Senate may, by its rules, violate the Constitution willy-nilly, but that:
    First, the Constitution itself requires they are to be given extreme deference (such as the quorum example I gave earlier, which is relevant since Senate Constitutional precedent is what is to be consulted in this case);
    and second, that if they still allow for the Senate to carry out its responsibilities, in however tortured a manner, declaring them unconstitutional is at the very least problematic. The rules, even as applied, still allow for the Senate to provide consent–though it would take a month to do so.

    Laying a second layer of problems on top of that hardly improves the situation. While I concede that the fact that such an “advice” resolution is unprecedented is not sufficient (although it is significant) constitutionally, I find such an “advice” resolution still problematic. Exactly what would the Senate be advising? “Mr. President, we advise you that the Senate should give its consent to your nominee”? “We advise you that your nominee is a quality person and you should press ahead with the nomination”? In what meaningful legal sense could such a resolution be considered “advice” as the Constitution contemplates?

    Dan Larsen (51d0dd)

  35. Article I states very clearly that the Senate may make its own rules governing its conduct. The manner in which the Senate chooses to handle its responsibilities–such as advice and consent–are determined by the rules laid down at the first congress, as amended (the Senate is a continuing body, not a reconstituting body like the House; we are, technically, still in the first Senate). If it were part of Senate rules to require that the nomination forms be sent to the moon and back or that they must lie underground for 8 months, such rules would be protected by the Constitution provided that the Senate could still, ultimately, carry out its responsibilities.

    Not in the real world.

    Laying a second layer of problems on top of that hardly improves the situation. While I concede that the fact that such an “advice” resolution is unprecedented is not sufficient (although it is significant) constitutionally, I find such an “advice” resolution still problematic. Exactly what would the Senate be advising? “Mr. President, we advise you that the Senate should give its consent to your nominee”? “We advise you that your nominee is a quality person and you should press ahead with the nomination”? In what meaningful legal sense could such a resolution be considered “advice” as the Constitution contemplates?

    In what meaningful sense would it not be? If the resolution fails, the message is: this is not the best pick. If it succeeds, the advice is done. All that remains is the consent.

    Patterico (756436)

  36. You said: “never in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate.”
    I have 2 words for you zippy, Abe Fortas!

    Try READING SOME HISTORY before you blather on about something your obviously uneducated about.
    PINHEAD

    Darren (485470)

  37. Uh, Darren . . .

    You need to read some history yourself. See my comments 29 and 30 above. If you had simply read through the comment thread before leaving a comment, maybe you wouldn’t have embarrassed yourself so badly.

    Patterico (756436)


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