The Political Spectrum

According to CongressDaily, Senate Majority Leader Frist (R-Tenn) is prepared to invoke the "nuclear option" during the next contested judicial nominee. At best I can figure what this entails is a request by the Leader to the President of the Senate (VP Cheney) for a ruling on the propriety of the filibuster as applied to judicial nominees. Cheney, as expected, will rule that the 60 vote rule is not appropriate for judicial nominees. Democrats will, of course, object and the ruling will be put to a vote, where a simple majority (51) is all that will be required to change the longstanding Senate rule.

Now let me begin by stating my own personal opinion on the use of the filibuster. As many of you have heard me say, I do not support the Democrats use of filibusters on judicial nominees. While I don't agree with many of the people or philosophies put forth, I didn't think and don't think that this was a wise political maneuver. That being said, however, let me be perfectly clear. My position is based on a feeling of comity, or better yet a belief in "what goes around comes around," at lets face it the symbol of the GOP is the elephant, an animal legendary for its long memory. In no way did my opinion on this issue stem from any legal or constitutional obligation on the part of the Senate to confirm Presidential Nominees. I do not think that the filibuster was illegal or unconstitutional, just bad politics.

Let's take a look at just the constitutional claim. Article II, sec. 2, cl. 2 of the Constitution states in part that "[The President] shall have power, [to] nominate, and by and with the advice and consent of the Senate, ... Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: ...." Nothing in this clause "requires" that the Senate consent to a nominee, and moreover, nothing in this language suggests that the "advice and consent" clause is to represent a rubber stamp by the Senate on everyone that the President sends forth. Now I admit that the filibuster is not contained in the Constitution, but the authority of each house to determine its own rules is specifically laid out at Article I, sec. 5, cl.2, which states "[e]ach House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." The Senate has agreed to a rule that under certain conditions 60 votes is required to end debate, and bring an issue to the floor for a vote. The rule makes no distinction that I am aware of between legislation and nominations. Therefore, either is eligible to be filibustered. Furthermore, federal courts, including the Supreme Court, have consistently ruled that the internal rules of the Senate and House are non-justiciable political questions (See, e.g., Baker v. Carr) Thus, taking all of this into consideration, I fail to see how anyone can argue that the filibuster is unconstitutional or illegal.

In short, while GOP members may feel justified in invoking the "nuclear option" in my opinion two wrongs don't make a right, so they should refrain from taking action that will result not in appointments to the federal bench, but rather in a complete stoppage of work in the Senate and a stalemate at the federal legislative level which will ultimately do far more harm than good. I don't know what the ultimate solution to this problem is, but I know the "nuclear option" isn't it.