Posted on 05/01/2003 1:40:48 PM PDT by Andrew Hyman
NOMINATIONS SHOULD BE DECIDED BY MAJORITY
From Andrew Hyman:
The Hill’s March 12 article about the Estrada filibuster (“GOP moves ahead with controversial nominees”) reports that Republicans see a silver lining, but that would be cynical and misguided. Even if a couple more Republicans are elected to the Senate, that would be useless if they cannot perform their constitutional duty of advice and consent. Democratic senators are wrong too, when they argue that there is a legitimate comparison between the obstruction of President Clinton’s nominees by a Senate majority, versus obstruction now by a Senate minority.
The Framers of the Constitution intended nominations to be decided by a majority. They intended opponents of a nominee to carry the burden of proof. Alexander Hamilton said it best in Federalist Number 66: “[I]t could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.” Democratic senators should now assume that the confidential records of the solicitor general that they seek would confirm their worst fears, and they ought to vote accordingly in an up or down vote on the nominee.
Senate Rule 22 says that discussion can be ended “if” there are 60 votes for cloture, but that rule does not prevent discussion from also being ended another way. In particular, Article I, Section 3 of the Constitution says that the vice president serves as president of the Senate, and has power to decide votes that are equally divided, without distinguishing between preliminary and final votes. At the invitation of several abstaining Republican senators, the vice president has authority to decide a tied cloture vote. The vice president has often decided votes that have been tied at less than 50 senators.
The Constitution provides for a supermajority vote in several instances, such as to override a veto, and the Constitution also excludes the vice president from Senate rulemaking and from establishing a quorum. However, a cloture vote does not fall into those categories. The vice president’s authority to decide equally divided Senate votes could not be completely eliminated by a hypothetical Senate Rule requiring 60 votes for every Senate action, and likewise that authority cannot be eliminated regarding cloture votes.
It is a cardinal principle that Senate rules should be construed so as to avoid serious constitutional problems. The Senate President and the Senate majority have broad discretion to interpret Senate Rule 22 in that manner, with respect to nominations.
Newtown, Conn.
Schumer's idea is simple. The problem would be solved, he says, if the president would simply give up his constitutional right to nominate judges. Instead, Schumer suggests that "Both the Administration and the Senate should agree to the creation of nominating commissions in every state, the District of Columbia, and each Circuit Court of Appeals. Every commission will consist of an equal number of Republicans and Democrats, chosen by the President and the opposition party's Senate leader. Each commission will propose one candidate to fill each vacancy. Barring evidence that any candidate proposed by a commission is unfit for judicial service, the President will nominate the individual and the Senate will confirm her or him."Sheesh. Imagine the current committee gridlock times sixty-four.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.