Thursday, May 26, 2005

Irresponsible Senate Democrats - Part 2

My post Monday on Irresponsible Senate Democrats drew a thoughtful comment from Seth Chalmers. He takes the other side. Although the Senate compromise has made the filibuster a less immediate matter, I still must take issue with a couple of the points he advocates.

First, on a side issue to the main question of whether the Senate Democrats were behaving responsibly or not when they filibustered several of Pres. Bush's judicial nominees, Mr. Chalmers says that "the Constitution does not specify that [the Senate] must [give advice and consent] through an up-or-down vote, majority or otherwise." In fact, the Constitution does require a simple majority, but not more, to consent to the appointment of a judicial nominee. See my post on What the Constitution Requires for Judicial Appointments. When the Constitution requires a supermajority, as it does for treaties, it expressly says so. The absence of a supermajority requirement for Senate advice and consent on judicial nominees shows clearly that a simple majority of the Senate is all that is ever required.

The main point of the original post was that the Senate Democrats are acting irresponsibly when they refuse to allow a vote on judicial nominees. Mr. Chalmers suggests that the Senate could act some way other than through a vote. If so, the filibuster would lose its significance. For example, while the Democrats were filibustering, all (or at least 51) of the Republicans could sign a document to give advice and consent to the appointment of the judicial nominee. A court case on the authority of the judge so appointed would surely follow after the judge's first decision. Can you confidently predict the outcome? Who wants to take that chance?

Anyone who thinks the Senate Democrats were acting responsibly when they filibustered judicial nominees should consider other situations in which the Senate alone has the constitutional authority to perform. Imagine that a terrorist gets through security and blows up the Supreme Court while in session, killing all 9 justices. When Pres. Bush appoints 9 conservative Republicans, the Senate Democrats filibuster all 9. The Supreme Court positions remain vacant for years. Would that be responsible?

Imagine that the electoral college does not produce a winner in 2008. The House of Representatives is unable to select a president from among the top 3. Meanwhile, the Senate Democrats, still in the minority, filibuster to prevent the Republicans from selecting the Republican for Vice President, who would become President on January 20 until the House finally puts together a majority of states for one candidate. Would the Senate Democrats be acting respomsibly?

Whenever the Senate has constitutionally mandated duty, the minority is not acting responsibly if they block the Senate from performing its duty.

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