Nominations no place for filibuster

[dude1394]

Sounds like this person knows whereof they speaketh.

As a republican I am prett po'd that our legislators have not gotten rid of this ridulous practice already. The argument that the pubbies might also want to filibuster is some of the most lame crapola I've ever heard. Unfortunately it solidifies my opinion of John McCain and definitely makes me even more suspicious of legislatures, they are in love with their own power and are scared to freakin' death that they might not have some in the future, no matter how ridiculous it is.


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crockett

Comment: Nominations no place for filibuster

David A. Crockett
Special to the Express-News

The federal government is headed for a train wreck in the area of judicial nominations, one that could explode with a Supreme Court vacancy.

President Bush prefers conservative judges, but Democrats have sent a clear message that they will filibuster such nominees.

Filibusters of judicial nominees violate the structure and intent of the Constitution, and this partisan mess will not be cleaned up until political leaders relearn the constitutional logic of the nomination process.

The Constitution is organized in a very deliberate fashion. Article I deals with Congress and spells out the lawmaking process. Lawmaking is a legislative function, and Congress is the active agent in that process — the originator and prime mover of bills.

Section 5 gives each house of Congress the power to "determine the rules of its procedures." In the Senate, Rule 22 allows the minority to prevent final action on a bill through a filibuster as long as they have the support of more than 40 percent of their colleagues.

Although mystifying to many, the filibuster is constitutionally sound when applied to legislation. Congress is the active agent in lawmaking, and if it wants to make that process more difficult, it can.

The president's constitutional role in lawmaking does not kick in until Congress has completed its task, but at that point he has no choice — he must act on what Congress sends him. His job in this arena is to check Congress — to sign the bill or guard against what Alexander Hamilton called "the enaction of improper laws" through the veto. He cannot halt the process. That is as it should be, for lawmaking is at heart a legislative function.

Article II spells out executive functions. The Framers gave the president the responsibility to staff the nonelective positions in the federal government — Cabinet officials, ambassadors and judges. The president is the active agent in the staffing process — the originator and prime mover. If he wants to make the process more burdensome, perhaps through lengthy interviews or extraordinary background checks, he can. He has near-total power in this area.

The Senate's job is to check the president — in Hamilton's words, "to prevent the appointment of unfit characters" through the advice and consent process. Some argue the Senate should be able to use the same tools in nominations that it does in legislation. However, a presidential nomination is not legislation. It is part of the president's function of providing steady administration of the law.

It is inappropriate for the Senate to employ a delaying tactic normally used in internal business — the construction of legislation — in a nonlegislative procedure that originates in a coequal branch of government.

Just as the president is forced to take final action when Congress sends him legislation, so the Senate should take final action — hold up-or-down votes — on constitutional matters sent by the president, such as treaties and nominations. The Senate should not be able to halt the process, for these are at heart executive functions.

This does not mean the Senate should roll over for the president. The Senate should reject his nominees if they are "unfit characters," just as the president should veto bad bills.

The problem with the filibuster is that it prevents final action on a process that originates in the executive branch. Nominations should be regulated by majority vote, and the Senate should give its advice and consent through that mechanism.

Not only would such a move end minority obstruction of nonlegislative matters, it would also drive home to all citizens that elections have consequences. If you don't like the actions of the Senate majority, change it.

David A. Crockett teaches political science at Trinity University.