The gang that couldn't get the Constitution straight
Democrats are falling all over themselves in anxiety over the (seemingly more remote) possibility that Republicans in the Senate will ask the presiding officer of that chamber, the vice-president, to rule on whether federal judges require fifty-one votes (a majority) or sixty votes (the amount required to break a filibuster) in order to be confirmed. This has gained the shorthand title of the "nuclear option." Harry Reid, Senate Minority Leader, recently sent a letter to Majority Leader Bill Frist, threatening to shut down all non-vital Senate business if the Republicans exercised this option.
In this "blackmail" letter, Reid claims that removing the filibuster for judicial nominees "would remove one of the constitutional checks and balances that has served our country so well for over two centuries." Sen. Reid must be reading from a different copy of the Constitution than the one I have, which says nothing about filibusters in relation to confirmation of judicial nominees. Article II, Section 2, simply says that the president, "by and with the Advice and Consent of the Senate," shall appoint federal judges.
He apparently is not reading the same Constitution as Sen. Robert Byrd either. Byrd, in a sentence largely overlooked in his disgusting floor speech comparing Republican tactics to those of Nazis, stated, "Note that nowhere in the Constitution is a vote on appointments mandated." That's true. The Wall Street Journal picked up on this theme when Sen. Byrd repeated the claim. It editorialized, "now that Senator Byrd has expressed the view that the Senate doesn't have to vote at all, here's a better idea for ending the impasse over judicial nominations: Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates. Under Mr. Byrd's Constitutional analysis, the Senate will have exercised "advice and consent" and the judges will be confirmed."
A second point about Reid's letter: He claims that "[t]he Framers of the Constitution created a system of checks and balances to limit the power of each branch of government, and in that way to protect the rights of the American people. The Senate's review of judicial nominees is especially important because federal judges are the only government officials to receive lifetime appointments. These men and women will serve on the federal bench for decades, making far-reaching decisions that affect all Americans." True enough. And since that is the case, it seems all the more crucial that Congress hold on to every arrow in its constitutional quiver to ensure that these lifetime appointees are held to some standard of accountability. I'm speaking primarily, but not exclusively, about the impeachment power of Congress. It was, and is, intended to be an additional check and balance on the judiciary. As Alexander Hamilton wrote in Federalist No. 81,
"Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments."
An excellent article on the appropriate use of the impeachment power against federal judges can be found here. On consecutive days, the New York Times has editorialized about the judiciary. Yesterday it hyperventilated that "public attacks, proposed legislation, and even the threat of impeachment" were a danger to the independence of the judiciary. Today it intentionally takes remarks fron Sen. John Cornyn -- a former judge -- out of context to nobly claim that "[t]he need to shield judges from outside threats - including those from elected officials like Senator Cornyn - is a priceless principle of our democracy," and to attempt to shame Sen. Frist into abandoning the "nuclear" option. God forbid the editors at the Times ever read The Federalist Papers and understand that impeachment, used properly, is a check on the judiciary, not a threat to its independence, and that the judges, once confirmed, remain subject to scrutiny.
In this "blackmail" letter, Reid claims that removing the filibuster for judicial nominees "would remove one of the constitutional checks and balances that has served our country so well for over two centuries." Sen. Reid must be reading from a different copy of the Constitution than the one I have, which says nothing about filibusters in relation to confirmation of judicial nominees. Article II, Section 2, simply says that the president, "by and with the Advice and Consent of the Senate," shall appoint federal judges.
He apparently is not reading the same Constitution as Sen. Robert Byrd either. Byrd, in a sentence largely overlooked in his disgusting floor speech comparing Republican tactics to those of Nazis, stated, "Note that nowhere in the Constitution is a vote on appointments mandated." That's true. The Wall Street Journal picked up on this theme when Sen. Byrd repeated the claim. It editorialized, "now that Senator Byrd has expressed the view that the Senate doesn't have to vote at all, here's a better idea for ending the impasse over judicial nominations: Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates. Under Mr. Byrd's Constitutional analysis, the Senate will have exercised "advice and consent" and the judges will be confirmed."
A second point about Reid's letter: He claims that "[t]he Framers of the Constitution created a system of checks and balances to limit the power of each branch of government, and in that way to protect the rights of the American people. The Senate's review of judicial nominees is especially important because federal judges are the only government officials to receive lifetime appointments. These men and women will serve on the federal bench for decades, making far-reaching decisions that affect all Americans." True enough. And since that is the case, it seems all the more crucial that Congress hold on to every arrow in its constitutional quiver to ensure that these lifetime appointees are held to some standard of accountability. I'm speaking primarily, but not exclusively, about the impeachment power of Congress. It was, and is, intended to be an additional check and balance on the judiciary. As Alexander Hamilton wrote in Federalist No. 81,
"Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments."
An excellent article on the appropriate use of the impeachment power against federal judges can be found here. On consecutive days, the New York Times has editorialized about the judiciary. Yesterday it hyperventilated that "public attacks, proposed legislation, and even the threat of impeachment" were a danger to the independence of the judiciary. Today it intentionally takes remarks fron Sen. John Cornyn -- a former judge -- out of context to nobly claim that "[t]he need to shield judges from outside threats - including those from elected officials like Senator Cornyn - is a priceless principle of our democracy," and to attempt to shame Sen. Frist into abandoning the "nuclear" option. God forbid the editors at the Times ever read The Federalist Papers and understand that impeachment, used properly, is a check on the judiciary, not a threat to its independence, and that the judges, once confirmed, remain subject to scrutiny.
posted by Hal | 10:57 AM
0 Comments:
Post a Comment
<< Home