George Allen Predicts Byrd Option Tomorrow
By Captain Ed on Judiciary
Despite the media grandstanding of John McCain in attempting to fashion a compromise that winds up tossing judicial nominees under the bus, fellow GOP Senator George Allen predicts that the Senate will be forced to adopt the Byrd option and rule filibusters out of order for judicial confirmations. Allen told ABC yesterday that the Republicans have the votes to do it on Tuesday:
Sen. George Allen, Virginia Republican, said yesterday that he doesn't think a compromise can be reached with Senate Democrats and predicted his party has the 51 votes needed to employ the so-called "nuclear option" that will prevent the filibustering of judicial nominees.
"I just think that it is not that big of a deal for senators to exercise their constitutional responsibility," Mr. Allen said on ABC's "This Week." "I think that we'll get the constitutional option done, and we'll vote on judges."
Also yesterday, Senate Majority Whip Mitch McConnell, Kentucky Republican, answered "yes" when asked on CBS' "Face the Nation" whether his party "has the votes to overturn this Senate rule."
In fact, the Democrats have already come to that conclusion. As the Washington Times notes, the Democrats in recent days have dropped the threat of stopping Senate business, spooked by the widespread comparisons to Newt Gingrich and 1995. Now they reject even the notion of a slowdown, as Chuck Schumer declared:
"We are not going to attempt to shut down the Senate," said Sen. Charles E. Schumer, New York Democrat and early architect of the filibusters. "We are not going to attempt to slow down the Senate."
The new Democratic plan for retaliation, Mr. Schumer said, will be to "implement our strategy of basically trying to use the Senate rules to put items on the agenda that the American people care about."
"We are going to attempt to use the rules -- as well as outside pressure -- to force the Senate to take up agenda items that we haven't done before," said Mr. Schumer, who now heads the Democratic Senatorial Campaign Committee (DSCC).
That represents a significant climbdown from their earlier threats, and one that clearly shows they expect to lose. In truth, the Democrats had nothing to offer the GOP for a compromise. They refused to foreswear filibusters in the future in exchange for picking off one or two of the nominees, and without that, the GOP could not trust them to exercise any discretion of its use, especially given their track record. They've blocked a third of Bush's appellate-court nominees by filibuster, including several with the highest ABA ratings, an abuse that will cost them access to that tactic in the end.
The Democrats have recently begun a scare campaign that claims Republicans want to eliminate the filibuster altogether, not just for judicial nominations but also for legislation. This new conspiracy theory states that the GOP will set a precedent on Tuesday that makes it easy for the majority to cast off this particular Senate tradition. Unsurprisingly, McCain mouthed this canard to the press:
"We're talking about changing the rules of the Senate with 51 votes, which has never happened in the history of the United States Senate," Mr. McCain said, adding that he was worried that eliminating the filibuster for judicial nominees would lead to the elimination of the 214-year-old parliamentary tactic altogether.
"If you have 51 votes changing the rules of the Senate, nominations of the president is next, and then legislation follows that, and we will now become an institution exactly like the House of Representatives," Mr. McCain [said].
McCain must have fallen asleep during Senate History Month, because the GOP won't be setting any precedent on Tuesday -- only following the four set by Robert Byrd and the Democrats. Byrd changed the filibuster rules four times during his tenure as Majority Leader, abetted in at least one instance by former VP Walter Mondale, who now writes silly op-eds about the danger of such maneuvers to the Republic. Instead of listening to his Republican colleagues and paying attention to the facts, however, McCain continues in his ongoing quest to pander to the anti-Republican sentiment in the press.
No one expects the GOP to eliminate the filibuster for legislation. Legislation originates within the Senate and is therefore an internal process, and the Senate is well within its power to regulate debate on its own terms for that purpose. However, the confirmation of executive appointments and treaties involve the power and responsibilities of the executive branch, and the Senate does not set the rules for those purposes. Those rules are governed by the Constitution, which calls for supermajorities only on specific items -- none of which are judicial appointments. This attempt by Democrats to apply an internal control to an external, interbranch function and Constitutional responsibility amounts to a usurpation of power by the Legislature, and worse, by a minority within the Legislature.
If the Democrats want judicial nominations to require a supermajority, they need to propose a Constitutional amendment to change the rules. That will require a supermajority within Congress and three-quarters of the states to ratify it, an impossible task, given that 214 years of our existence has never shown a need for such a rule. Further, the Democrats will never propose it, because it would expose them as the radicals of this issue, as opposed to their claims of GOP power-grabbing. Instead, they propose to pervert the Constitution and interbranch governance by smokescreens and intimidation -- and for the past two years, the GOP allowed them to get away with it.
That's why the GOP cannot compromise on the use of the filibuster. Any deal which includes its future use for judicial confirmations only endorses it as a legitimate tactic and seriously twists the Constitutional balance of powers. That should never be the basis of any compromise. |
