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.
