Andrew Hyman suggests, both in comments here on PoliBlog, but also in his own post on Confirm Them, that this entire confirmation affair does, indeed, have to do with checks and balances, despite my argument yesterday that it does not.
Now, we both agree that changing the filibuster rule for judicial nominees does not damage checks and balances, we disagree as to whether maintaining the filibuster would affect c&b’s. Writes Andrew
When a Senate minority grabs the reins in the nomination process, this makes it much more LIKELY that the Senate will then improperly encroach upon BOTH the powers of the judiciary and of the executive.
I would argue that the Senate, as a collective body, has the right to decide how it will dispose of nominations sent to it by the President. This is in concert with the concept of separation of powers and with the Senate’s checks and balances responsibilities. Hence, should a majority of the Senate decide that it will require a 2/3rds vote for all nominees (even though such a rule empowers the minority), then they have every right to do so. The problem in the current circumstance is that the majority is opposed to that procedure and involved in a fight to change that circumstance.
Indeed, if the argument for the constitutional/nuclear option is that the majority of the chamber can do away with the filibuster rule for judicial nominations, then I see no legal, constitutional or logical reason why he majority cannot require a super-majority.
As I have noted before, Article I, Section 5, Clause 2 notes “Each House may determine the Rules of its Proceedings�—as such, the right to dictate how many votes for confirmation strikes me as constitutionally within the hands of the chamber itself.
Therefore, I see nothing in the constitutional design of the federal government that would dictate the way by which the Senate, as a collective institution and part of one of three branches of the federal government, should dispense with its advise and consent role.
Part of the problem is that this debate has become about parties and partisan points of view. However, parties have nothing whatsoever to do with checks and balances, nor with majorities and minorities, but with the relationship between two of the branches of the federal government. As such, there is nothing about the nature of checks and balances that takes into account the balancing of the partisan interests.
Indeed, the segment out the minority party from the majority when speaking of the Senate’s checks and balances responsibilities misses the fact the when speaking of c&b’s we need to look at the Senate as a unit, and further, the partisan disposition of the Executive is irrelevant.
To reduce my arument to the basics: checks and balances is about the ability of one segment of the federal government to limit the power of another. As such, the fundamental theoretical issue is not partisan division nor majorities or minorities, but the power of a given institution to function independently of another. Further, separation of powers means that the institution has the right to dictate its own procedures within the confirms of constitutional parameters. As such, the Senate can set whatever threshold it wishes. The problem at the moment is that the minority is setting those rules. The issues here, then, in within the institution of the Senate, and therefore not about checks and balances.
In this specific debate the bottomest of bottom lines is that the majority members of the institution in question are objecting to the current rule that is dictating behavior–as such the issue isn’t about checks and balances, but about the internal rules of the chamber.
The question now becomes whether the majority has the courage of its convictions and will pursue the appropriate rules change or not.
Thanks Dr. Taylor, for your futher thoughts about this subject. You write, “I would argue that the Senate, as a collective body, has the right to decide how it will dispose of nominations sent to it by the President.” Perhaps the best way for me to proceed here is just to ask you a couple direct questions.
1) Don’t you think it would be usurping the nomination power for the Senate to say the following to the President: “Go ahead and nominate whoever you want, but we won’t consent to anyone but Jerry Springer for Chief Justice of the Supreme Court”?
2) Likewise, don’t you think it would be destroying the independence of the Judiciary for the Senate to say to a judicial nominee: “We won’t confirm your nomination unless you promise to rule how we would like on certain particular issues which we will explain to you now in detail”?
I believe that both of those things would violate the separation of powers, and both of them (or watered-down versions of both of them) become far more likely when a Senate minority is allowed to veto nominations. Of course, my points (1) and (2) would probably be nonjusticiable political questions, but still the Senate has certain constitutional responsibilities in the confirmation process, and they can’t just do whatever they want.
Comment by Andrew Hyman — Thursday, April 28, 2024 @ 2:59 pm
Andrew:
This strikes me as overblown “what if” game We can turn the first one on its head and ask “what if the President submitted the names of Michael Jackson, OJ Simpson and Paris Hilton to the Senate and wouldn’t send anyone else?” It really degenerates into silliness.
My point is simply this: the chamber can set its own rules, as per the constitution itself and via the principle of separation of powers of powers.
In reagrds to the Senate attempting to extract certain promises–how would such promises actually be secured? Further, you will find that no nominee (not even the most liberal) would answer such questions nor would they make specific promises on rulings.
I am not sure how either of your examples illustrates that checks and balances are being compromises. Also, there seems to be some conflation of the concepts of separation of powers with that of checks and balances.
Of course, ultimately, we are on the same side in regards to how the current situation ought to play out.
Comment by Steven Taylor — Thursday, April 28, 2024 @ 3:09 pm
Yes, we basically agree about how the current situation ought ot play out. Regarding Michael Jackson, OJ Simpson and Paris Hilton, I think we’d also agree that they’re not qualified and so the Senate would be perfectly entitled to reject those nominations.
But getting back to my question (1), if the Senate were to refuse to confirm anyone but George Mitchell or Jerry Springer than that would be usurping the nomination power (i.e. overdoing the check that the Constitution intended the Senate to have). Such a distortion of the Senate’s check on the appointment process would be no less severe if the Senate were to refuse to confirm any “originalist,” which is basically what the Senate has been doing for the past two years. The Senate has thus been transferring much of the power to choose nominees from the President to the Senate, leaving the President only with power to select a nominee satisfying all of the ideological requirements of the Senate.
In regards to the Senate attempting to extract certain promises from nominees, you ask how such promises would actually be secured. They would be secured by the Senate confirming only nominees who have a track record of being honest and keeping their word. You say that no nominee (not even the most liberal) would answer such questions, but actually they already have. Nominees have been pressured to say, for example, which cases they regard as “settled” or “very settled,” and that kind of thing. Nominees have also been asked to explain who their favorite justices are and why—and nominees know that they will stand a much better chance of being confirmed if their answers cater to the ideologies of people like Schumer, who has specifically said that he evaluates nominees for ideology. Hatch, however, has specifically said that he does not do that. Hatch’s approach prevents the Senate confirmation process from over-checking the judiciary.
Bottom line: I still think that the Senate can abuse its confirmation power to the extent that it over-checks the nomination power and over-checks the judiciary. The Senate has been doing just that for the past two years.
Comment by Andrew Hyman — Thursday, April 28, 2024 @ 4:02 pm
Take a Filibuster Break
I need a filibuster break. So, a little history…
Trackback by Vote for Judges — Thursday, April 28, 2024 @ 4:17 pm
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