Senators Mull Options to End 'Advise and Dissent'

By Jeff Johnson | July 7, 2008 | 8:21 PM EDT

Capitol Hill ( - Pennsylvania Republican Arlen Specter is one of three senators with proposals pending to end the stalemate over President George W. Bush's more conservative judicial nominees.

At a hearing of the Senate Judiciary Subcommittee on the Constitution Tuesday, Specter said the current filibuster of two nominees by some Democrats is evidence of the currently high levels of "partisanship and bitterness" in the Senate.

"For more than 200 years, the latitude has been accorded to presidents on 'advise and consent,' but suddenly, the Constitution has been turned into 'advise and dissent,'" he said. "Now, we have the unprecedented situation with the filibusters. There's just no basis for that in the more-than-200-year history of our Republic."

Specter has proposed amending the Senate rules so that the time periods between a judicial candidate's nomination and his or her Senate Judiciary Committee hearing and the wait between the Committee's affirmative vote and a floor vote are fixed unless cause can be shown for a delay. His proposal would also mandate that, if a nominee is rejected by the Judiciary Committee on a party-line vote, the nominee would still receive a vote by the full Senate.

Sen. Charles Schumer (D-N.Y.) argued the problem is not that the Senate is not voting on some of the president's nominees, but that the president is failing to consult senators before nominating candidates.

"Yes, we're sort of at a deadlock, but this was not started by Democrats in the Senate," Schumer claimed. "This was brought on because President Bush, as he said it in his campaign, he said he chooses to nominate people in the mold of Scalia and Thomas ... Bush's nominees have had a hugely ideological caste, and we have had no choice."

Schumer wants to effectively take the power of nomination away from the president, placing it in the hands of an allegedly bipartisan "judicial nominating commission." The commission would be made up of an equal number of appointees chosen by the president and the leader of the opposition party in the Senate.

The members of the commission would then agree to one nominee per vacancy, which the president would formally nominate. The Senate would agree to confirm that nominee unless "anything that disqualifies the person for service" is discovered during a background investigation.

The White House has already responded to Schumer's proposal, labeling it unconstitutional.

"We appreciate and share your stated goal of repairing the 'broken' judicial confirmation process and the 'vicious cycle' of 'delayed' Senate nominees," White House Counsel Alberto Gonzales wrote to Schumer in a letter Tuesday. "But we respectfully disagree with your proposal as inconsistent with the Constitution, with the history and traditions of the nation's federal judicial appointments process and with the soundest approach for appointment of highly qualified federal judges, as the founders determined."

Gonzales said the proper way to resolve the dilemma is for the Senate to abide by the Constitution, not try to unofficially change it.

"As President Bush and many senators of both parties have stated in the past, the solution to the broken judicial confirmation process is for the Senate to exercise its constitutional responsibility to vote up or down on judicial nominees within a reasonable time after nomination," Gonzales explained, "no matter who is president or which party controls Congress."

Sen. Zell Miller (D-Ga.) has introduced a third proposal to amend the Senate rules that could appease those senators who are truly concerned that debate on a nominee not be ended too quickly.

Miller's plan would reduce the number of senators needed to end debate on a nominee on each successive cloture vote. The first vote to end debate would still require the current 60 supporters to succeed. The second would require 57 supporters, the third 54 and a fourth vote to end debate on a specific nominee and hold a vote would require a simple majority of the Senate. There would be two days between each cloture vote, meaning the opposition could have up to two full weeks to expose any perceived deficiencies in a nominee.

"The United States Senate is the only place on the planet where 59 votes out of 100 cannot pass anything because 41 votes out of 100 can defeat it," Miller said in a prepared statement for the subcommittee.

"Try explaining that at your local Rotary Club or to someone in the Wal-Mart parking lot or, for that matter, to the college freshmen in Poli-Sci 101," he added. "You can't because this silly Senate math stands democracy on its head."

Sen. John Cornyn (R-Texas) chaired the hearing. He agrees with both Miller and the White House.

"Any exceptions to the doctrine of majority rule, such as any rule of a supermajority vote being required on nominations, must, in my view, be expressly stated in the Constitution," he said.

"For example, the Constitution expressly provides for a supermajority, two-thirds voting rule for Senate approval of treaties and other matters," Cornyn continued. "That's not the case, however, with regard to judicial nominees."

The American Center for Law and Justice (ACLJ) prepared a report for the subcommittee entitled "An End to Nomination Filibusters and the Need for Cloture Motions," which argues that the Senate can, by a simple majority vote, amend its own rules to eliminate the use of filibusters against judicial nominees.

Under current Senate Rule XXII, the Senate is bound to allow unlimited debate unless 60 senators vote to "invoke cloture," ending discussion on the matter under consideration. When Rule XXII was adopted, the sponsors included language requiring a two-thirds majority vote to amend the rule.

ACLJ Chief Counsel Jay Sekulow believes that provision is not binding on the current members of the Senate.

"Nothing in the Constitution, the Federalist Papers or other source documents indicates the obstructive and delaying tactics by legislative minorities were intended to be the source of the Senate's deliberative care," Sekulow wrote.

"A willing majority of senators [could] make new rules for the Senate," Sekulow concluded, "either eliminating the filibuster or substantially curtailing the impact of a filibuster by eliminating the supermajority requirements."

Miller's proposal, examined in light of the ACLJ analysis, appears to be both constitutional and practical. Democrats may have a harder time opposing Miller's strategy, as well, both because he is a Democrat and because it is modeled after a proposal originally introduced in 1995 by Tom Harkin (Iowa) and Joseph Lieberman (Conn.), both Democratic senators.

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