In explaining his decision to allow another hearing on the nomination of White House aide Brett Kavanaugh to the DC Circuit Court of Appeals, Judiciary Committee Chairman Arlen Specter had this to say: “I do not want to place the Senate in the position where we were a year ago this time when were having filibusters on the Democratic side and the Republican side was posing the constitutional, or nuclear option.I want to avoid that.”
The sentiment is understandable, but on principle it is frustratingly counterproductive. The goal of Republicans ought not to be AVOIDING a fight, but WINNING the fight. The constitutional option is not to be feared. Indeed, it ought to be used, the sooner the better. There is a reason we have dubbed it the “constitutional option” — because permanent filibusters used to kill judicial nominations are quite arguably unconstitutional by the letter of the law (there have been HUGE discussions of this over the past few years at Southern Appeal and Confirm Them and elsewhere; I’ll let you, dear reader, do your own research and find the links), and certainly violate the absolutely clear spirit of it and of the Federalist Papers (several unambiguous Hamilton passages). There is a good reason why no permanent filibuster had ever been used to kill a judicial nomination before, and indeed why no judge with a majority of the whole Senate in favor had ever before been denied confirmation, in the first 214 years of the republic: because until the Schumerites came along, the very idea was unthinkable and indeed anathema.
Therefore, the goal should be, yes, to avoid a successful filibuster — but to welcome rather than fear an attempted fillibuster that is killed with the constitutional option. Getting rid of, by rule, the permanent filibuster against judicial nominees would be a very good thing. It would restore the proper balance in the “advice and consent” equation. Otherwise, you have the bizarre ability of a minority of one half of one branch of government to hold hostage the power of a second branch of government to fill the offices in a third branch of government, whose operations are thus effectively held hostage as well to that minority of one half of one branch. On its face, the ability of such a semi-demi-hemi minority to hamstring two full branches (out of three) of a republican government is an abomination against republican principles.
The sooner we exercise the constitutional option, the sooner we (“we” meaning the American people through our elected senators) can restore the proper and appropriate and at least semi-efficient procedures meant to get judicial nominees either confirmed or rejected and thus to promote an efficient system of justice.
If the Kavanaugh nomination, sans a second hearing, would lead to an attempted filibuster that in turn were killed (the filibuster, not the nomination) by the constitutional option, it would open up the pipeline and let all the other nominees get the timely up-or-down votes that they deserve. This doesn’t mean they all deserve confirmation just by virtue of being the President’s choice, but it does mean they deserve to have their fate determined without endless delays and endlessly scurrilous attacks — so they can move on with their lives either way. For Judge Terry Boyle to live in limbo for 15 years (!!!), wondering if his on-again, off-again promotion to a circuit court will ever be approved, is for him to be subjected to near-criminal abuse. Sometimes I think these high-and-mighty senators forget that it is real human lives that are being affected by these delays and smears — not to mention, of course, that needed judgeships remain unfilled and their circuits backlogged, meaning ordinary citizens in those circuits have to wait too long for their day in court.
In sum, I don’t fault Specter’s intentions. But the end result of his overblown animus against the idea of the constitutional option is a host of despicable outcomes.
Next up on this topic: An analysis of the wisdom of the tactic of putting Kavanaugh through another hearing, APART from the question examined above about whether the constitutional option should be used.
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