Friday, May 20, 2005

The Constitutional Option

Ann Althouse points out that the founders considered requiring a supermajority to reject judicial nominations. She then cites to the published notes taken during the constitutional convention which says:

Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

Here's another on the same topic demonstaring that the founders didn't have in mind the current process of severe congressional vetting of nominees:

Mr. Madison moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch

This idea was not followed and the congress was given the "advise and consent" role, which subsequently led to nominees needing to receive a majority. The way the democrats are playing, all you need now is a sliver of a minority who wish to filibuster to effectively reject the nomination.

One commenter on the site makes a great point:

The filibuster is a tradition in the Senate. It remains a tradition because it is rarely used. In fact, part of the filibuster tradition is that it is rarely used. Filibustering seven circuit appeals nominees is clear abuse of the tradition. In a sense, once the filibustering occurred the tradition was scuttled. We can cartinaly argue over who crossed the Rubicon first. It doesn't matter. Either way, there will no longer be a filibuster tradition regarding judicial nominations in the U.S. Senate.


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