April 18, 2005


The GOP's Favorite Democrat (Ari Berman, 04/18/2005, The Nation)

"You're like Zell Miller without the crack," Jon Stewart once told Nebraska Senator Ben Nelson. Lately, though, it looks like Nelson may be taking hits from the pipe.

Nelson, the Senate's most conservative Democrat, is drafting legislation to give bipartisan cover to Bill Frist's plan to outlaw the filibuster of judicial nominees, known as the "nuclear option." Nelson's proposal would bar the use of the filibuster and allow any Senator to call an up-or-down floor vote on any judicial nominee, even if the Senate Judiciary Committee blocks the nomination.

Posted by Orrin Judd at April 18, 2005 9:31 PM

The best proposal I have heard to date is the following:

Since the Constitution requires the advice and consent of the Senate for judicial nominees, the Republicans ought to send a letter to the President - signed by 51 Senators - that approves of his judicial nominations. The Constitution does NOT require a vote in the Senate - just that the chamber provide its advice & consent.

I can just hear Byrd chirping his protests, but I think this would pass Constitutional muster, as long as the 9th Circus Court does not get involved.

Posted by: oswald booth czolgosz at April 18, 2005 10:28 PM

What amuses me is how the writer of this article waxes aghast at the idea straight-up-or-down floor vote to approve or reject a president's judicial nominee (in other words, how the Constitution defines the rules). Whence this assumption or starting-point of his? It is the filibusters and the 60-percent overrule requirement that are an abobination of the Constitution, or am I badly mistaken? OJ?

Posted by: george at April 18, 2005 11:18 PM

Excuse me. aboMination.

Posted by: george at April 18, 2005 11:20 PM

The party out of power loves the thing.

Posted by: oj at April 18, 2005 11:35 PM

The Constitution says two things:

Art. II, Section II, Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Art. I, Section 5, Clause 2: Each House may determine the Rules of its Proceedings.

In other words, appointments to the Courts need the Senate's consent (though the Congress could give the Supreme Court the power to appoint lower court judges, or give it to the President, acting alone). The Senate is the only judge of whether the Senate has consented. The Constitution does not require or imply that a majority is sufficient. That is entirely within the purview of the Senate.

Posted by: David Cohen at April 18, 2005 11:41 PM

If The Nation dislikes Nelson so much, we Nebraskans can always throw him out and elect Johanns.

Anything to please...

Posted by: Matt Murphy at April 18, 2005 11:57 PM


It's a sure bet that "The Nation" dislikes Nebraska even more than it dislikes Ben Nelson.

Posted by: jim hamlen at April 19, 2005 12:09 AM

> abobination

> Excuse me. aboMination.

I would like to personally thank you for the clarification.

Posted by: Bob Hawkins at April 19, 2005 2:54 PM