NathanNewman.org: What's Wrong with 60-Vote Confirmation Rules?

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March 13, 2003

What's Wrong with 60-Vote Confirmation Rules?

THe Weekly Standard fears for the Republic:

In a 55-44 vote, Democrats last week defeated a Republican attempt to break their unprecedented partisan filibuster of Estrada's nomination, opening the way for the simple-majority standard for Senate confirmation of judicial nominees to be replaced with a super-majority requirement. The Republic isn't there yet. But it's close.

First, between "blue slips" and other games played in the past, majority vote was rarely the simple requirement for judge confirmation.

And while I am a strong proponent of majority rule on legislation-- and would love to see the filibuster eliminated against proposed laws -- judge confirmations merit super-majority agreement more than any other decision by the Senate.

Why? Because it can't be reversed if the Senate makes a mistake. When Congress passes bad legislation, they can always pass another law to correct the problem. But there is no such simple option with judges, except for impeachment which requires a two-thirds vote and a process that is far harsher on their object than a touch confirmation process.

As well, judges are a third branch of government with life tenure and it's not unreasonable for both parties to always have a say on their confirmation, since they will outlast any particular parties tenure in the White House or Senate leadership.

Lastly, the likely result of such mutually assurred destruction of nominees is the appointment of what all sides claim to want, judicially restrained judges who are unlikely to overrule laws near and dear to either side. Abortion will remain a political football, but on most issues judges will likely get the most mileage in saying, it's not my job to second-guess you Senators, except on the broad consensus of individual rights such as free speech.

So onward to 60-vote confirmation requirements for judges!

Posted by Nathan at March 13, 2003 08:57 AM

Related posts:

So Much for Judicial Tradition - Apr 02, 2003

Abolish Filibuster/Abolish Senate - Mar 12, 2003

GOP Attack on Estrada Opponents Backfires - Mar 10, 2003

Backfire of "Anti-Latino" Line on Estrada Filibuster - Mar 09, 2003

Why Judicial Character is Not the Issue - Mar 06, 2003

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We're agreed, 60 votes for a judicial appopintments makes sense... but isn't this what we were talking about yesterday with the filibuster? A filibuster is just an insitutional rule (or loophole) that allows a minority of 41 to block legislation or a nomination from coming to a vote. So, in this case, they DO need a 60 vote supermajority to confirm Estrada.

I actually think the filibuster system works pretty well... the strong minority can block legislation it doesn't like, but doing so has a political cost, so it happens only rarely. A standard 60-vote requirement would make it much harder to get things done on a day-to-day basis.

Posted by: paul at March 13, 2003 11:11 AM

Well, I disagree, even though you have an excellent argument.

The Constitution requires that a judge be confirmed by majority vote in the Senate. Period. If you want to change that to a 3/5 margin, then that would require an amendment to the Constitution. Requiring a 3/5 margin would exclude many of the most qualified and best candidates.

The customs of the Senate are the customs of the Senate. Those customs allow for filibustering, and the 60 vote minimum to stop a filibuster. Should the customs of the Senate continue to allow for this? Yes. The Senate is supposed to be the older, wiser, think-with-their-heads legislative body in our bicameral system. It is supposed to be resistant to change. It is supposed to be deeply concerned not with the shifting partisan winds of hte moment, but the public interest of our country. The customs of the Senate are integral to this function. To break the customs of the Senate would signal a great upheaval.

The Senate has a constitutional role in scrutinizing judicial nominees. The real question before us with the Estrada nomination is, what kind of nominees should be confirmed? In my view, we should work toward making the bench less politicized. The judiciary is deeply important to our system of free government. The increasing politicization of the judiciary, culminating in Bush v. Gore, is regrettable.

From reports, Estrada is said to be extremely conservative. These reports are bound to make those who want a less politicized judiciary nervous.

Bush must accept that his nominees are only nominees. Whoever they are, the Senate must pass its own, independent judgment on the them.

Posted by: Andrew Hagen at March 15, 2003 01:09 AM

Posted by: som at August 24, 2004 06:47 AM

March 13, 2003

What's Wrong with 60-Vote Confirmation Rules?

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