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A Nuclear Option without the Nuclear Option.

by Conservativity Staff,
Originally Posted: 5/26/2005 10:37:18 AM
Last Updated: 5/26/2005 12:26:00 PM

This is a direct quotation from the "memorandum of understanding" that the GOP’s Turncoat Seven negotiated with the Dark Side Democrats: "We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."  Glenn Reynolds, in his Instapundit.com Blog, reminds us of a law review article he wrote long ago.  After reading this 1992 Law Review article (click here for that article) carefully, I think that Mr. Reynolds is onto a good thing here.  I have an idea...

"The article suggests that the Senate adopt a rule where they suggest to the President, in a non-binding manner, nominees for a Supreme Court vacancy."

The article suggests that the Senate adopt a rule where they suggest to the President, in a non-binding manner, nominees for a Supreme Court vacancy.  It goes further to suggest that, should the president select one of the Senate’s suggested nominees, that nominee gets "fast track" treatment for confirmation.  Mr. Reynolds is brilliant.  There is wisdom in the suggestion for more than one reason.

Should Dr. Frist go ahead and tell the cabal of 14, "OK, we’ll enact your suggestion into the Senate Rules," the cabal will be over a barrel.  They will have no choice but to support this.  Were I Dr. Frist, I would draft the rule in such a manner that any judicial nominee from the suggestion list could not be filibustered or otherwise blocked, and would not even be subject to further committee hearings.  I also would make the selection of the Senate’s suggested nominees a simple-majority vote.  Even go further and allow the minority caucus to suggest two names, and the majority caucus to suggest two names, for a total of four.

There is nothing in the Constitution to prevent the GOP Senate caucus from asking the President who he would like to see on the list.  There would be nothing in the proposed rule requiring the President to pick a name on the list.  Any non-list nominee gets the normal confirmation process.  In fact, extend this well past the issue of Supreme Court nominees.  Make this the case for all judicial nominees.

"What this rule change would do is take the power of the Senate away from 14 grumblers and give it to the entire Senate.  It would also stymie the efforts of the minority to stymie the majority."

What this rule change would do is take the power of the Senate away from 14 grumblers and give it to the entire Senate.  It would also stymie the efforts of the minority to stymie the majority.  It would simultaneously validate and emasculate the "memorandum of understanding!"  It would avoid the Nuclear Option while effectively nuking the judicial filibuster.  It would force the leftists to vote for the rule change, or risk the appearance of unreasonable obstructionism.  It would give the minority the "voice" it claims to want, while not binding the President or the Senate majority in any manner.  It passes perfect Constitutional muster, since it adheres to the language of Article II, Section 2.

This Rule Change is the perfect move.  Dr. Frist should propose it at once.  It leaves the Senate with absolutely no recourse but to approve it.  How would a Senator plausibly say that it is unfair for the minority to get to propose two potential nominees for every judgeship, that if chosen, would be guaranteed an up-down vote?  How would the Cabal of 14 argue that Dr. Frist’s codification of their suggestion into a rule of the Senate was unfair?  These arguments cannot be sanely made.

"Now it is true that few people accuse the Senate Democrats of sanity."

Now it is true that few people accuse the Senate Democrats of sanity.  They will undoubtedly come up with some amendment stating that the judicial nominee must be placed on the list only by a supermajority, but in doing so, they are showing their true colors.  And, contrary to the beliefs of the left, the people are smart and easily see through this kind of gambit.

This move has no downside, negates the treachery of the GOP’s Turncoat Seven, and answers the concerns that the left says it has.  Thanks to Glenn Reynolds for this wonderful suggestion.