by Matt Schuh
The USA Today opined on Monday that President Bush's move to renominate 20 judicial nominees who had previously been blocked by the US Senate is likely to set up a deadlock in the Senate that could potentially affect his agenda as his second term begins next month.
The article's concern however isn't so much the renomination of the failed nominees, but rather Bush's push to eliminate filibustering on Judicial nominations. By the comments of the Senators who have weighed in on the issue, it seems both sides are prepared to stand firmly with their position, even at the expense of lost political ground. The question to ask though is what exactly are these two sides fighting over?
It would provide for a declining series of votes to end debate on judicial appointments. The first motion for cloture would still require a three-fifths vote, and the second and third attempts would require 57 and 54 votes, respectively, with all attempts thereafter requiring a simple majority.
All right, I get it; the ending of filibustering for this matter is delayed, not eliminated. I'm uncertain what this actually accomplishes. I suppose it can be likened to something like waiting periods for the purchasing of handguns. The reality is that this bill does, at the end of the day, end the long-standing tradition of allowing non-majoritarian rule to govern to an extent in the Senate. So what makes Judicial nominees different? According to Mark Levin of the Federalist Society:
...it is one thing for the Senate minority to thwart the will of the Senate majority on issues that are constitutionally assigned to Congress -- such as taxing and spending bills. It is another for it to do so over those powers, like the judicial appointment power, largely within the prerogative of the president.
I'm not certain I buy this argument either. The Constitution says that the President has the power with the "Advice and Consent" of the Senate to appoint members of the Federal Judiciary (intentionally paraphrased). The argument that "Advice and Consent" does require a majority support from the US Senate is one that could be made, but would be difficult to be taken very seriously. While it is the job of the President to nominate, the role of the Senate to confirm is one is clearly rooted in our current system of government.
The better argument is that the Senate has the power to change its own rules of procedure at any time. Rule V of the Standing Rules of the Senate states:
1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.
Interestingly enough, there doesn't seem to be anything dictating the number of votes required for passage of these rules changes, so I must assume it is "a majority." Of course, I suppose this itself would be subject to the requirement of 60 votes for cloture, so there is still a difficulty for passage. The reality at the end of the day however is that all of this is a distraction from the real issue at hand which is "what is different about judicial nominees." I agree that it is frustrating to see nominee after nominee who would have easily passed a simple majority test be turned down by the will of an overwhelming minority, but I cannot, in good faith come up with a differentiating characteristic about Judicial nominations that should make them subject to a different standard than other business before the US Senate.
Perhaps the better debate to be having right now is whether we wish to allow the Senate to be governed by the non-majoritarianism that has governed it for its entirety. I think the system is a bit antiquated, but I'm not sure there isn't something to be gained from the restraint accommodated by such a system. Is it conservative to do away with a mechanism which, by its very nature, requires greater consensus for governmental action? I'm right with the (ever increasing) Republican majority in wanting to see more Federal Judges nominated who will interpret the Constitution more strictly, but in achieving that goal, I would hope that the GOP would work within the framework that has made them appealing to the Americans who put them in office.