Here We Go . . . Again
By William Bailey (10/07/03)
The Judiciary Committee of the U.S. Senate has announced that, on a 10-9 “party-line” vote, the name of Charles Pickering will be submitted to the full Senate for confirmation. Mr. Pickering has been nominated by the President to fill a vacancy on the 5th U.S. Circuit Court of Appeals. In the previous session of Congress, when the Democrats controlled the Senate (and the Judiciary Committee), the vote in Committee was 10-9 . . . NOT to bring the nomination to the floor. Again, along party lines.
If the “Filibuster Club” moves forward (as promised), they will add a fourth name to the list of judicial nominees being blocked for consideration by the full Senate.
As you, no doubt, know that list contains the names of Miguel Estrada (who has now asked that his nomination be withdrawn), Priscilla Owen, and Bill Pryor. Nominee Pickering will be added to the list.
I do not speak on behalf of, or against, any of the nominees ! I speak on behalf of the Constitution of the United States. And, I do not understand the absence of outrage on the part of U.S. citizens that the Constitution is being circumvented.
There is no ambiguity in the wording of the “advice and consent” function of the Senate. It has been stated time and time again what the specific provisions of the Constitution are relative to judicial nominees. It occurs in Article II, Section 2, Clause 2. It states quite clearly and succinctly “ . . . he [the President] shall nominate, and by and with the advice and consent of the SENATE (emphasis added) . . . judges of the Supreme Court, and all other officers of the United States . . . “. There is no provision for “delegation of authority” to the Judiciary Committee to act on behalf of the full Senate. Likewise, I do not find any provision in the Constitution that authorizes a “Rule of the Senate” to override any Constitutional provision.
If the Senate is desirous of having the Judiciary Committee do the “leg-work” on judicial nominees (background checks, hearings, etc.), I can understand and accept that as a proper role and function of the committee. If the Judiciary Committee, as a result of that “leg-work”, wants to “advise” the Senate, that can come in one of three methods . . . 1) recommend the nominee be confirmed;
2) recommend the nominee not be confirmed; 3) simply report the nominee to the floor of the Senate without any recommendation as to whether the nominee should be confirmed. Beyond that, I see no Constitutionally established function for the Judiciary Committee relative to judicial nominees.
Judiciary Committees in both Republican and Democratic Congresses have played this game. But, that doesn’t make it right and proper. Yet, it continues. And now on top of that “charade” we have the filibustering of judicial nominees.
As I have stated before, if they want to filibuster, then force them to filibuster . . . under the “true” terms of filibustering. Let them get the floor and talk 24/7. Let the Sergeant-at-Arms of the Senate be instructed to get all members present. Stop this insidious foolishness. Do what the Constitution provides, let the Senate vote. But, you see, therein lies the problem. The opponents to this particular group of nominees do not have the votes to block confirmation. And, they know it.
The proposal by the Majority Leader to “solve” this problem will go nowhere. Why ? The proposal is to change the Senate rules and provide for a lesser number of votes each time that a motion to invoke cloture is presented until, after so many times, the required number of votes gets down to 51. Might sound good. Might look good on paper. Here’s the problem . . . it takes 60 votes to end a filibuster, but it takes 67 votes to change the rules of the Senate. If you can’t get the first, how do you propose to get the latter ? Makes no sense. The only sensible solution is to do what the Constitution provides. If the President submits a nominee, after due and deliberate investigation, bring the nomination to the floor of the Senate. If you have the votes to confirm . . . confirm. If you don’t, the confirmation can’t and won’t happen. But . . . the provisions of the Constitution will have been carried out.
The current procedure in the Senate has been going on so long that there are, probably, a lot of Americans who believe that’s the way it’s supposed to be done. In a letter to William C. Jarvis in 1820, Thomas Jefferson wrote, “I know (there is) no safe depositary of the ultimate powers of society, but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of Constitutional power.”
The Federalist Papers also speaks to this issue. In Federalist No. 76, Alexander Hamilton says clearly that the “advice and consent” responsibility is to be exercised by “an entire branch of the legislature” –not just by a single committee. Hamilton also warned about the “spirit of cabal and intrigue” that can be attendant on getting nominations confirmed.
The oath of office taken by members of Congress is, likewise, just as clear as the “advice and consent” provision of the Constitution. It states, very simply, that they swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic”. It does not grant the flexibility to “support and defend” only those parts with which they agree.
It is time for the nonsense to stop ! It is time for Americans to demand that the founding document of this Nation be returned to prominence as to what governs the United States of America.
Yes . . . Here We Go . . . Again . . . and, unless “We the People” do something to stop it, it will be again and again and again and again.
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