December 24, 2004
- If the Senate Republicans aren’t prepared to end the unprecedented use by Senate Democrats of the filibuster rule against the president’s judicial nominees, the president will have a very tough time getting these re-nominated judicial candidates — and for that matter, Supreme Court nominees — confirmed.
- The so-called “nuclear option” — which should be called the Constitutional option — would end the use of the filibuster for judicial nominations. The Democrats are warning that if the Republicans change the filibuster rule, then all hell will break loose. I cannot think of anything worse than what they’ve done, and will continue to do — which is prevent the president from appointing judges to the federal court.
- The Senate rules have never been used to block presidential judicial appointments. By threatening to use the filibuster, or actually invoking it, the Senate Democrats are requiring that a super-majority of 60 senators must, in essence, confirm a judge. There are 7 instances in which the Constitution provides for super-majority votes — convictions related to impeachment, adoption of treaties, expelling members, overriding vetoes, amending the Constitution, 14th Amendment, and 25th Amendment.
- The Senate has, under the Constitution, an “advice and consent” role. But it cannot use that role to impose a super-majority requirement on the president’s nomination function or on the rest of the Senate. After all, all senators have a right, under the Constitution, to provide their advice and consent, which means the right to a simple majority vote on the Senate floor.
- At no time in over 200 years, until the prior Senate, did senators contend that the filibuster could be used against judicial nominees. The point is that is was understood that the Constitution did not grant 41 senators the power to thwart the president’s judicial appointment power. The way we conservatives read the Constitution is to try to determine what the words mean, what the framers intended — we don’t assign broad meanings to words or look for loopholes.
- One last point – if the Senate, which has the constitutional right to make its own rules, decides that it wants to require a super-majority vote to pass certain bills, such as tax bills, that’s perfectly fine. Such a rule would NOT infringe on a presidential power. But to do so when it affects a presidential power, such as the appointment of judges, that would be unconstitutional.