Supreme Supermajority?

Democrat political consultant Mark Mellman writes in today's issue of The Hill that Supreme Court nominees should need 60 votes to be confirmed. It is an interesting polemic, clearly set out to justify the current Senate filibuster of Bush appellate nominees as well as the anticipated Democrat obstructionism of future Bush Supreme Court nominees. Mellman, in fact, insists that the 60 vote requirement should be demanded.

Most Americans agree. In a recent poll we conducted, 69 percent said, “A nominee should have to get the support of at least 60 of the 100 senators.” Just 29 percent believe, “When the president nominates a justice to the Supreme Court it should take the votes of only 51 of the 100 senators to confirm the nominee and make them a Supreme Court justice.”

In short, a supermajority of the electorate backs a supermajority to confirm a Supreme Court nomination.

It’s a view shared by Democrats and Republicans, liberals and conservatives.

Supermajorities are appealing because Americans believe in government by consensus. If a nominee can’t muster 60 votes in the Senate, there is not a sufficient consensus to put that person on the Court for life. If the president does not believe a candidate can meet the 60-vote threshold, he should not submit the nomination. If the president finds out during the course of hearings and debate that a candidate will not garner 60 votes, he should withdraw the nomination.

Frankly, I'd love to see that polling data, because I'm suspicious of such in-house polls.

But setting the question of the veracity and reliability of Mellman's poll and the partisan nature of his arguments (including ad hominem attacks on Clarence Thomas, Orrin Hatch, and Bill Frist), there is a bigger question -- is a supermajority really desirable for Supreme Court nominations? It might be, but Mellman fails to make a clear case for them, so interested is he in bashing his political opponents.

What Mellman also fails to do is consider the actual Constitutional requirement for confirmation, as set out by the Constitution in Article II, Section 2, Clause ii.

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.

Right there you have it. The Constitution itself does not set out a supermajority requirement. It in fact does precisely the opposite, excluding the confirmation of "Judges of the supreme Court" (as well as appointments to executive branch offices) from the supermajority requirement set for the ratification of treaties. The standard for confirmation is therefore clearly set by our founding document, the supreme law of the land, as a majority vote. There is no interpretation needed, because the requirement is right there. End of discussion.

Now is there a way to change the number of votes required for confirmation as a"Judge of the supreme Court"? Yes, there is. It is found in Article V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress....

Let Harry Reid and Nancy Pelosi propose an amendment to the Constitution to set the bar for judicial nominees at 3/5, or even 2/3, of the Senate. See if it gets out of the House and Senate (which requires one of Mellman's beloved supermajorities) and let's see if 3/4 of the states (another supermajority required by the Constitution) will ratify it. My suspicion is that it won't ever get out of Congress.

And I wonder -- would Mellman be interested in requiring a supermajority of the Supreme Court be required to strike down a law as unconstitutional, since a mere majority of the justices does not represent a consensus of Americans on the matter?

UPDATE: I wonder how Mr. Mellman would reconcile his poll numbers with these poll numbers?

The survey, conducted by the Judicial Confirmation Network, concluded that 67 percent of voters agree that politics should be taken out of the courts and out of the confirmation process.

"It is abundantly clear that the American people are tired of the partisan, political maneuvering and the unwarranted character assassinations against qualified candidates for the federal bench," said Wendy Long, counsel to the Judicial Confirmation Network, in a press release.

Eighty-two percent of voters agree that "if a nominee for any federal judgeship is well-qualified, he or she deserves an up or down vote on the floor of the Senate," the poll found.

"People see through these aggressive and negative attacks waged by some individuals and groups on the left and they want it to end," Long said. She added that voters want senators "to do their jobs" and vote up or down on nominees "based on their qualifications, not the baseless, negative rhetoric of the left."

The survey also found 75 percent of voters agree that "President Bush should keep his promise made during the campaign to nominate a U.S. Supreme Court justice who will apply existing law, not make new law." And by 78 to 12 percent, voters agreed that senators have a "constitutional duty" to vote on judicial nominations.

Now again, I have no access to the actual polling data, so I have the same concerns about this poll as I do about Mellman's. I've been involved in survey research in the past, and know that how you ask the question can determine how respondents answer (we got 75% of our respondents to support legalized abortion in one question, while getting 67% to oppose it on another). But I find it interesting that on the same day we get such diametrically opposed numbers quoted at us.