Orrin Hatch: Nuclear Option Still on the Table

Human Events ^ | May 28, 2005 | Senator Orrin G. Hatch

[RWR8189]

The judicial filibuster agreement reached by a group of 14 Republican and Democratic senators may be a truce, but it is not a treaty.

It remains to be seen if the Senate’s tradition of up-or-down votes for judicial nominations will be re-established. And make no mistake, every tool for returning to that tradition remains on the table. As Majority Leader Bill Frist and even some signatories to this agreement have acknowledged, this includes the constitutional option.

Those who founded this republic designed the Senate without the minority’s being able to filibuster anything at all. After a rules change made the filibuster possible, the Senate reserved its use to the legislative calendar and by tradition did not use it for judicial nominees. We could have used the filibuster to prevent confirmation of judicial nominations, but we did not do so.

In 2003, after 214 years, that tradition changed when Democrats blocked confirmation of 10 majority-supported appeals court nominees by preventing any confirmation vote at all.

The ends, however, do not justify the unconstitutional means. We must restore the Senate tradition of up-or-down votes for judicial nominations reaching the Senate floor.

On May 23, 2005, a group of 14 senators, seven Democrats and seven Republicans, issued a “Memorandum of Understanding on Judicial Nominations.” The Democrats’ part of the pact was pledging to vote for cloture on three named judicial nominees and to oppose filibusters of future judicial nominations except in undefined “extraordinary circumstances.” The Republicans’ contribution was pledging to oppose changing Senate rules or procedures regarding judicial filibusters during the current 109th Congress.

They announced this deal on the eve of a Senate vote that would have eliminated the judicial filibuster altogether. Four times during the 108th Congress, the Senate failed to invoke cloture, or end debate, on the appeals court nomination of Priscilla Owen. Had that happened again on May 24, 2005, Frist would have sought a ruling from the presiding officer that, after sufficient debate, the Senate should vote on a judicial nomination. I would have joined a majority of my fellow senators in voting to affirm that ruling, re-establishing Senate tradition and making the judicial filibuster a thing of the past.

Recently dubbed the constitutional option, this is a mechanism for changing Senate procedures—without changing Senate rules—that has been used, directly or indirectly, for nearly a century. The filibuster deal was struck, in part, so that the constitutional option would not, at least for now, be exercised.
The operative words here are “for now.” On its face at least, the deal fails to re-establish the Senate’s tradition of up-or-down votes for all judicial nominations reaching the Senate floor. Instead, it may effectively reduce the number of senators who can dictate which nominees receive floor votes to just the handful involved in this deal, since they can make or break the 60-vote threshold for invoking cloture, or ending debate, under Senate Rule XXII.

Loopholes in the Deal

Perhaps even worse, the deal does not even attempt to distinguish the “extraordinary circumstances” justifying future filibusters from the “extreme” standard Democrats say justified their past filibusters. Rather than confine the filibuster, this subjectivity creates loopholes large enough to drive a filibuster through.

The imperative to re-establish Senate tradition remains. This deal does not take the constitutional option for accomplishing this goal off the table. In fact, it was precisely the prospect of using the constitutional option in this very instance that prompted this agreement, including the promise to allow votes on nominees such as Priscilla Owen, Janice Rogers Brown and William Pryor. Some Republican signatories have already said that they will support the constitutional option if the deal’s “extraordinary circumstances” loophole turns out to be a distinction without a difference compared to past practice. If we return to judicial filibusters—and we all know a Supreme Court vacancy looms—we will return to the constitutional option.

The judicial confirmation process needs to be fixed by returning to the tradition of up-or-down votes for judicial nominations reaching the Senate floor. This deal does not directly accomplish this goal, though it remains to be seen whether it might still do so in practice. I agree with Frist that, one way or another, whether by the self-restraint that once guided us or by the constitutional option, that tradition must return.

Sen. Hatch (R.-Utah) is the former chairman of the Judiciary Committee.

[Antoninus]

You know, I used to think that the "nuclear option" was like a sword of Damocles hanging over the heads of the Democrats. I no longer believe that. I now think it's more like a carrot on a stick hovering just out of the reach of the conservative base of the GOP. It's meant for us, not for the Dems. Hence, it will continuously threatened but never used.

Third party is starting to look tempting in 2006. What's the point of continuing to vote for bozos like this?

[DoughtyOne]

Good suggestion. I'm not a real Senate historian but there must have been idiots before this. I don't know though. Perhaps our society is just deminished to the point that this is now possible without getting your hind end handed to you at the next election. In the past I'd suspect McCain would have been political toast by now.

[AFPhys]

I wish Hatch, and all the Republicans, would simply DISCUSS THE CONSTITUTION when talking about the "constitutional option". The case is easily made in, for example, Breaking the Rules: The Framers intended no more than a Senate majority to approve judges.http://www.freerepublic.com/focus/f-news/1404953/posts


This article contains a side-by-side comparison and the dates that the judicial appt's question was brought before the Constitutional Convention.
Excerpt:

On June 13, 1787, it was originally proposed that judges be “appointed by the national Legislature,” and that was rejected; Madison objected and made the alternative motion that appointments be made by the Senate, and that was at first approved. Madison specifically proposed that a “supermajority” be required for judicial appointments but this was rejected. On July 18, Nathaniel Ghorum made the alternative motion “that the Judges be appointed by the Executive with the advice & consent of the 2d branch,” (following on the practice in Massachusetts at that time). Finally, on Friday, September 7, 1787, the Convention approved the final Appointments Clause, making the president primary and the Senate (alone) secondary, with a role of “advice and consent.”

Obviously, this question is something that the Framers carefully considered. The Constitution and Supreme Court decisions are quite clear that only a majority is necessary for confirmation. Neither the filibuster, nor a supermajority vote, is part of the Advice and Consent role in the U.S. Constitution. Until the past four years, the Senate never did otherwise.

After discussion, the Framers of The Constitution clearly intended majority advise/consent approval of the Senate in this case to be sufficient, and wrote it that way, and ratified the document in this form.

Up until now (two years or so ago), that was always understood (recall the 52-47 approval of Justice Thomas instead of some successful filibuster) and it was the only provision ever voted on in the history of the country regarding this issue. If they wish to change that, the Senate and House must muster a 2/3 majority to start to AMEND the Constitution.

All Hatch needs to say is that the Framers explicitly considered requiring a supermajority approval for judges, and explicitly rejected that.

[AFPhys]

I really need to anticipate the "But the Constitution gives the Senate the right to make its own rules" argument, since I'm going to bed now ... That is answered "True in some ways. They can make their own rules on legislative process, but not when it comes to fulfilling their RESPONSIBILITY to the other branches.

NRO's McCarthy had asserted that filibustering judges did not violate the constitution last November.  He describes why his further study and reversal in  CONFESSING ERROR. His argument is circuitous enough that it appears to be a legal opinion rather than an easily accessible article, but he has clearly thought about this a great deal now, unlike his earlier writings - his words, not mine.

If you have a mind for legalese and enjoy a challenge, take a look at it.

Culmination of his argument is:

"...the power of the president to make appointments is explicitly spelled out in the constitution. By blocking it, the Senate is thus effectively denying the executive his indisputable authority." ...

"Filibusters of judicial nominees have always been a bad idea. They are also an unconstitutional idea. I used to think otherwise, but I have not heard an argument that overcomes the structure of the constitution. No matter who is president, nominees deserve an up-or-down vote."

If you put these together, the NO FILIBUSTER OF JUDGES argument is certain to win the day in an honest court.

[JCEccles]

I'm thinking that from the beginning we should have called this the "Democrat option," not the nuclear option, not the constitutional option. Democrats have used it repeatedly in the past and are world class hypocrites for feigning shock and dismay over Republican promises to invoke it in this very narrow and special circumstance.

Calling it the "Democrat option" or perhaps the Robert Byrd option would have brought the focus back to the Democrats and placed their hypocrisy under a very bright light. As it is, the Democrats have bamboozled many people into believing this is a new and underhanded tactic about to be sprung on the tender and precious Senate by a conspiring and evil Republican cabal.

[Luke21]

Glad to see somebody else thinks Kasich is Little Lord Fauntleroy. He's a RINO, weenie boy gun grabber.

[Txsleuth]

I noticed that from his first show, and was shocked to find out he was a Republican!

[strategofr]

LOL!

[strategofr]

LOL!

[Les_Miserables]

Good men? We have Hatch to thank for 1. Ginsberg 2. Souter 3. Talking the Republicans out of filibustering judges when they were in the minority. If they had the Rats would have pulled the "Byrd" option and this would be a settled matter. Hatch is either stupid or a skunk. In either case he is an empty suit.

[paulat]

Secret message to LibertarianInExile:

Why are ALL these dipshits 'invisible' here? Because some of them are far too likely to wear being labeled here as a badge of honor or as proof they are just trod upon, not stupid as a box of really dumb rocks, and trumpet either as a result of their stupidity. I think someone once referred to a few of these jugheads in the first group in some denigrating way and that's exactly what the dimbulbs did.

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We're just waiting for the right time to post your list...it'll come when you LEAST expect it....he he he....

[gorush]

Talk is cheap Orrin ol' buddy!