Monday, May 23, 2005

Irresponsible Senate Democrats

The U.S. Constitution makes the reasonable assumptions that the individuals serving in the Senate (or in the House of Representatives or as President) will perform the duties of the office and will act responsibly. The voters make the same assumptions when they elect individuals to office. However, once an individual is in office, he can refuse to perform his duties responsibly, and usually nothing can be done about it.

The Constitution gives the Senate the task of giving advice and consent on the President's judicial nominees. What happens when the Senate, because of its filibuster rules, fails to act? The Constitution gives no answer. The President can not call out the National Guard to force the Senate to vote on a nominee. (If he did, can you even imagine the fallout from such an act?) The federal courts can not order the Senate to vote on a nominee. (Separation of powers and political question issues would preclude any lawfully acting court from intervening.)

Clearly, the Senate is left to its own devices in performing its constitutional duties in a responsible way. The Senate, and only the Senate, has the constitutional duty to advise and consent on judicial nominees by majority vote. The Senate can only carry out this duty if it takes a vote on the nomination. The Senate can vote against a nominee, thereby denying consent; or the Senates can vote for a nominee, thereby giving consent. The failure to vote at all is a failure to act responsibly in performing the constitutional duty of advice and consent.

That is the situation we have come to for the first time since 1789, when the Constitution took effect. The Senate has, since 2003, allowed a willful minority, the Democrats, to use the filibuster to block the Senate from voting at all on at least 10 nominees who would be confirmed by the majority. This is a failure to perform a constitutional duty, an irresponsible act. The Senate, and only the Senate, has the power to change its rules so that responsibility prevails.

It is a shame that it has come to this. However, in the real world, which includes the Senate, there will always be people who will abuse the rules. When abuse of the rules prevents the Senate from performing its constitutional duties, the rules must be changed.

The Democrats have been abusing the filibuster rule since 2003 in order to satisfy certain of their interest groups. Their partisanship is hardly noble. Since the Democrats refuse to behave responsibly, the time has come for the Senate as a whole to change the filibuster rule so that the Senate may perform its constitutional duty.


Blogger Seth Chalmer said...

Quite wrong. The Senate is charged with giving its advice and consent, but the Constitution does not specify that it must do so through an up-or-down vote, majority or otherwise. Indeed, in no way does the Constitution mandate how the Senate is to perform its task, so long as it does; the Senate is empowered to make its own rules.

It seems to me you're simply picking a side and branding the other side irresponsible. I am in favor of retaining the filibuster. Nonetheless, I fully concede that eliminating it is perfectly legitimate and Constitutional. Eliminating it, retaining it, expanding it--all are Constitutional options. I am vexed that both sides argue from false positions of unchangeable tradition (traditions change in a government by, of and for the people) instead of simply discussing what is right.

So forget characterization wars of nuclear vs. Constitutional, or responsible vs. irresponsible. Let's discuss the issue itself.

Judges are unelected, and serve for life. That's a big deal. A very broad consent should be necessary for appointments to the least democratic of branches. This will work for the comfort Republicans too when we Democrats take back Congress. It will work against extremism on both sides.

-Seth Chalmer

5/24/2005 12:50:00 AM  

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