Letter from a Senator
By XSpyder Posted in User Blogs — Comments (2) / Email this page » / Leave a comment »
Recently, when it was more of a front-page item, I wrote my Senator, John Warner (R-VA), regarding the Senate's prescribed role in the judicial nominations process and his role in the vaunted compromise agreement on the judicial filibuster (him being one of the "Gang of 14").
The following is the text of the reply letter I received, dated June 14, 2005:
"Thank you for contacting me to express your views about judicial nominations, the filibuster, and the so-called "nuclear" or "constitutional" option. I appreciate you making this effort and offering me the opportunity to give you my perspective on these important issues.
Article II, Section 2 of the United States Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court, and all other Officers of the United States..." Thus, pursuant to the Constitution, both the President and the United States Senate play a role in the judicial nominations process.
In over a quarter of a century of serving the citizens of the Commonwealth of Virginia in the Senate, I have taken my constitutional responsibilities of providing advice and consent very seriously. In considering a nominee, I look at many factors: character, professional career, experience, integrity, and temperament for lifetime service on our courts are all important. The opinions of the officials from the state in which the nominee would serve and the views of my fellow Virginians are also relevant. In addition, I consider whether the nominee is likely to interpret the law according to legislative intent and precedent, as all judges should, or whether he or she will improperly impose his or [her] own views from the bench as a judicial activist.
Considering these many factors, I believe that President Bush has nominated many well qualified nominees to serve on the bench. While the overwhelming majority of these nominees have been confirmed by the Senate, unfortunately, starting in 2003, some Senators in the last Congress resorted to using a rare procedural maneuver known as the filibuster to prevent the full Senate from having up-or-down votes on certain nominees.
The filibuster is a Senate procedure defined as an extreme dilatory tactic used to obstruct or prevent action. Under Senate rules, a filibuster can only be defeated if at least sixty Senators vote in support of a motion to invoke cloture--a motion to defeat the filibuster and end debate.
In my view, systematic party-led filibusters of judicial nominees are wrong. I generally believe that nominees who enjoy the support of the majority of Senators ought to receive up-or-down votes. Accordingly, in the last Congress, I participated in an all-night Senate session to try to break the judicial filibuster within the framework of our existing rules. Regrettably, our effort was not successful.
Since then, it has been suggested that Senators should employ a mechanism commonly referred to as the "nuclear" or "constitutional" option in an effort to ensure that all judicial nominees receive up-or-down votes. Under this proposal, the Senate essentially would change its rules to ensure that judicial nominees could not be filibustered. While rule changes in the Senate usually require the concurrence of at least 67 Senators, this option would only require a simple majority vote.
As supporters of the "nuclear" or "constitutional" option considered utilizing this extraordinary procedure, I intentionally withheld expressing how I would vote on it in order to encourage the Republican and Democratic leaders to come to a mutually acceptable solution for the consideration of judicial nominations. However, once it became clear that the Senate leadership would not be able to reach such an accord, I then worked with a bipartisan group of thirteen other Senators to craft such a solution. In my view, bipartisan consensus was necessary to break the impasse on judicial nominations in a way that paid respect to the Constitution and the Founding Fathers[`] vision of the United States Senate.
Under our agreement, signatories committed that future judicial nominees will only be filibustered in extraordinary circumstances. I take this to mean that the kind of systematic party-led filibusters we saw again and again in the last Congress will no longer occur in the current 109th Congress. In return for this commitment, Senators who signed the agreement also committed not to support the so-called "nuclear" or "constitutional" option so long as filibusters on judicial nominations only occur in extraordinary circumstances.
In my view, our Constitution and the history, traditions, and rules of the Senate are very clear: while nothing explicitly guarantees judicial nominees an up-or-down vote in the Senate, the use of the filibuster in an attempt to prevent such votes has historically been very rare. Our agreement pays respect to these facts, and if the spirit of the agreement holds, the vast majority of judicial nominees will receive up-or-down votes while future judicial filibusters will once again be very rare.
Finally, while some have claimed that the "nuclear" or "constitutional" option, if successful, would have guaranteed an up-or-down vote for every single judicial nominee, this is simply not the case. While such an option would have, if successful, eliminated filibusters on judicial nominations, the fact of the matter is that throughout history Senators have used a variety [of] procedural tactics other than the filibuster to prevent the full Senate from considering certain judicial nominees. In fact, according to the non-partisan Congressional Research Service, since 1945 approximately 200 judicial nominations have not received up-or-down votes in the United States Senate. These other procedural tactics would have remained untouched by the "nuclear" or "constitutional" option.
In my view, the agreement on judicial nominations reached by 14 Senators will do far more to ensure that a large number of judicial nominees receive an up-or-down vote all the while paying respect to the Constitution and to the history, traditions, and rules of the Senate. While it is not a perfect agreement by any means, it is one based on mutual trust, respect and good-faith.
Again, thank you for contacting me.
With kind regards, I am
Sincerely,
John Warner"
Not sure exactly what to think, so feel free to comment, because this issue will come up again, and this agreement will be tested. I get the impression that while he is not exactly keen on the Democrats' shenanigans, he takes a very Senate-centric view of the whole issue.
Anyway, I know this is old news, but I thought I'd share.
The prior comment on Senator Warner's reply has it's good points for sure, but there is a far easier and more pertinent error which has not been addresses during this debate.
About 8 years ago, when the Dem's first found themselves in the minority, there was a rule change made (in the spirit of bi-partisan compromise) wherein the rules regarding the constitutional structure of a filibuster was redefined as one not requiring the maintenance of a continuous in-session (around the clock, day after day) wherein the floor was not to be relinquished at any time for any reason, as had previously been the case.
I am reminded of the movie in which the Senator from CA, not being able to garner the cooperation of a single other Senator, was forced to singly maintain his control of the floor until he fell upon complete exhaustion, thereby ending his filibuster. If he had garnered the assistance of another confederate or two, he would have succeeded in his effort.
This revision to the Senate rules was simply to permit any Senator to request a recess or adjournment overnight in order to 'make-nice' with the minority group. I suspect that any constitutional lawyer (or Senator who has a memory for these facts) could have spoken up on this matter long before thie current impasse occurred.
Now, at the risk of rocking somebody's boat, I would like to hear an answer to this current mess in light of such recent history.
Senator Warner says, "These other procedural tactics would have remained untouched by the 'nuclear' or 'constitutional' option." But this is not a good argument for opposing the so-called nuclear option. Here's how one prominent law professor has explained it:
"[T]here's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules -- on scheduling, on not having a floor vote without prior committee action, etc. -- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way."
This quotation comes from an exchange on a listserv for constitutional law professors; a liberal law professor, Mark Tushnet, was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes. Tushnet was correctly pointing out that there is indeed a huge difference.
Senator Warner seems to be claiming otherwise.
Technically, Warner is correct that the so-called nuclear option would not directly affect holds, blue slips, and the like. Nor would that option directly affect the massacres in Darfur, but that's no reason to vote one way or the other.