Senators Orrin Hatch (R-Utah) and Joe Biden (D-Delaware) faced off on Face the Nation this Sunday, discussing the upcoming nomination of a Supreme Court Associate Justice to replace the retiring Sandra Day O'Connor.
Let's understand something: the Constitution does not require consultation [of the Senate by the President in selecting a Supreme Court nominee], it's a courtesy. — Senator Orrin Hatch on Face the Nation, July 3, 2005Well, Senator Hatch, far be it for me to lecture you on Constitutional law, but I believe the phrase is "with the advice and consent of the Senate." What part of "advice and consent" is not clear to you? "Advice and consent" does not mean the same thing as "rubber stamp," nor does it simply mean an up-or-down vote. It means exactly what it says: it is the Constitutional responsibility of the Senate to advise the President on nominees, and it is the Constitutional responsibility of the President to seek that advice — and not just from the majority party, either.
When President Clinton came to Orrin Hatch in 1993 to ask his opinion regarding a nominee (Ruth Bader Ginsburg) to replace Byron White, and the following year, when he consulted with Hatch before nominating Stephen Breyer to replace Harry Blackmun, the Democrats held the majority in the Senate, with one more seat than the Republicans hold today. If the Democrats played by President Bush's playbook, they could have rammed through two wild-eyed liberal activists who would've outlawed straight white men over 40 (whew! I'm only 3 out of 4!), but instead he chose to get the advice and consent of the Senate, including the minority party.
That is precisely what the American people — and our Constitution — demand of a President.
I posted a challenge to President Bush's judicial nominees, back when we were only talking about appellate courts. In a nutshell, prove that you will listen and consider both sides of a complex issue, not prejudging it or dismissing one side as coming from another planet. As for the so-called "Constitutional option" of eliminating filibusters on judicial nominations, violating the rules of the Senate by ramming through a rules change by brute force without the 2/3 majority vote such a change requires, hardly qualifies as a "Constitutional option" in my judgment. If the Republicans want to change the rules of the Senate, let them do it by the established procedure, not by having President Cheney [Dick Cheney is Vice President of the United States, but also President of the Senate] make a transparently false ruling from the chair.
The filibuster has been a part of the Senate since its first session. As for Supreme Court nominees being rejected by the Senate, the first President to suffer that indignity was President George "Dubya" Washington when he nominated John Rutledge as Chief Justice in 1795.
The Republicans need to get over their persecution complex — especially since 7 of the 9 Supreme Court justices were appointed by Republican Presidents — and send a nominee who will treat all parties to a case with respect, and ameliorate [make better] rather than exacerbate [make worse] the political divide in our nation and in our Supreme Court.