The Chronicle editorialists try to pull a fast one in today’s ranting against what the Powerline crew has dubbed The Constitutional Option:
Frustrated that Democratic senators have used extended debate to reject seven of Bush’s judicial nominees, some Republican senators want to implement what has come to be known as the nuclear option: allowing 51 senators (or 50 senators and the vice president) to end debate on judicial nominees. They wish to forget that Republicans held up or rejected confirmation of an even greater number of President Clinton’s judicial nominees.
Note that the last sentence implies that Republicans used the filibuster to hold up or reject confirmation of that “even greater number” of Clinton nominees. But they did not use the filibuster.
Rather, the filibuster has become a mechanism by which the Democratic minority in the Senate has frustrated judicial nominations in an unprecedented manner, because they realize those nominees would command a simple majority if allowed to proceed to an up/down vote on the floor. However, the maneuver is only possible because of Senate rules, and is not required by the relevant portion of the Constitution, which states:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Nope, nothing there that requires a filibuster-proof majority to confirm judges.
One can understand that the Chron editorial idealists aren’t too happy with the ideological inclinations of an electorate that has chosen Republican control of the Presidency, House, and Senate, but sometimes democratic republicanism results in outcomes that don’t please everyone.
Republicans may well decide not to exercise the Constitutional Option. Still, the best way for the minority party to ensure that Republicans don’t exercise the Constitutional Option is not editorial whining or relying on the whims of Susan Collins, but beating the Republicans in elections.
UPDATE: The New York Times weighs in against the Constitutional Option, while admitting they supported nearly full obliteration of the filibuster when it was used to delay the Clinton Administration’s agenda. They also admit — honestly — that “the filibuster has not traditionally been used to stop judicial confirmations….”
