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Sunday, April 03, 2005

"Mail It In" -- How To Avoid The Filibuster

Let's concede, for the sake of argument, that Senator Robert Byrd (Klan-Dogpatch) is correct. No where does the Constitution require an "up-or-down" vote on a judicial nominee. It just isn't in there. But then again, the Constitution does not mandate a vote at all. It simply calls fo the "advice and consent" of the Senate. So notes a piece in today's Opinion Journal.

As the Senator says, Article II of the Constitution is silent on how the Senate shall exercise its "advice and consent" power in confirming judicial nominees. For more than 200 years, however, that body has interpreted the Founders' injunction to mean that a simple majority of Senators--51 in our age--must vote to confirm. That's why we cried foul in President Bush's first term when Democrats filibustered 10 appeals-court nominees, thereby denying them an up-or-down vote on the floor--even though every candidate had the support of a bipartisan majority. A vote to end a filibuster requires a super-majority of 60 Senators.

But now that Senator Byrd has expressed the view that the Senate doesn't have to vote at all, here's a better idea for ending the impasse over judicial nominations: Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates. Under Mr. Byrd's Constitutional analysis, the Senate will have exercised "advice and consent" and the judges will be confirmed.

Sounds reasonable to me. Having advised the President to reappoint those candidates denied a floor vote, the explicit consent of a majority of senators, communicated to the President constitutes "advice and consent". The Constitutional mandate having been met, the nominations are, by any Constitutional standard, approved and the judges confirmed.

Thank you, Senator Byrd, for providing the solution to the current crisis. Let the filibuster rule remain unchanged -- just follow the Constitution. Problem solved.


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