Biden Tries A New Tactic In Judicial Confirmation Battles

In the early nineteen-nineties, Republicans saw themselves in much the same situation the Democrats find themselves in now. A Democrat was in the White House and Democrats controlled both houses of Congress. In this situation, the minority Republicans saw what their task was – under the Constitution – if they wanted their agenda and priorities to be pursued by the American government: They had to get out, communicate with people, and win elections. Until that would be accomplished, Republicans recognized that the more liberal Democrat agenda – including the appointment of more liberal federal judges – was a fact of life with which – under the Constitution – they would have to live.

Consequently, when President Bill Clinton nominated two of the most liberal Justices of the Supreme Court – Ruth Ginsberg and Stephen Breyer – the GOP minority, though not completely comfortable with the appointments, did not go to extremist lengths to stop them. This was because the Republicans recognized that under the rules – the Constitution – it was the prerogative of the Democrat President to select the Justices, and of the majority Senate Democrats to confirm their appointments to the nation’s highest bench without extra-constitutional procedural obstacles placed in their way. Republicans are just funny that way when it comes to respecting the Constitution as written.

Of course, recent battles over the federal judiciary have revealed that now that they are in the minority, Democrats feel no similar need to constrain themselves according to the written rules. Rather, the tactic of choice of the current minority party is to ignore the rules as written, and apply rules of their own choosing while trying to convince the American people that the way they say things should be done makes a lot more sense than the way the Founders said things should be done.

It started with the extra-constitutional requirement of sixty votes in order for an appellate court judge to be confirmed, enforced by the filibusters Democrats waged against several nominees that President Bush put forward. And while the recent “agreement” between fourteen senators saw some of those nominees confirmed, several are still awaiting the floor votes that will certainly confirm them, if only the votes can ever be held. Now, with the impending nomination of a new Associate Justice to replace Sandra O’Connor on the Supreme Court, one prominent Democrat with presidential aspirations of his own is seeking to raise the bar even higher.

Joe Biden of Delaware has become the first Democrat to suggest that any nominee President Bush puts forward for the high court be required to receive a unanimous affirmative vote in the Senate. That is not a misprint, nor is it made up. As reported at CNSNews.com this morning, Senator Biden has established a website in which he asks Americans to join him “in encouraging President Bush to select a Supreme Court nominee who, like Justice O’Connor, will receive unanimous support in the Senate.”

Unanimous support would be great, to be sure. But things in Washington have changed a lot in the twenty-four years since Mrs. O’Connor was confirmed 99-0. Given today’s political climate, one could scarcely expect any nominee for any post to receive unanimous support in the Senate. It is doubtful that a nominee with whom Rick Santorum is comfortable will be acceptable to Patrick Leahy. Therefore, under Senator Biden’s proposal, no such nominee should be considered eligible.

As anyone who is moderately familiar with the nation’s Supreme Law knows, the Constitution requires that the President nominate someone for the post, with the Senate, as an institution, confirming or denying that nominee to the post in question. But how do you determine whether or not a one-hundred-member body grants its consent? Under the terms of the Constitution as written at Article 2, Section 2, the answer must necessarily be by a majority vote of the members. There is no more a requirement for unanimity in this process than there is in the process of passing a law, or raising taxes. And Senator Biden knows this.

This attempt on Mr. Biden’s part to initiate a grassroots movement for unanimity smells a lot like yet another attempt on the part of the liberal party to manipulate public opinion against a nominee who might only receive fifty-one votes, or even sixty votes. And it relies heavily on the ignorance of a large portion of the electorate, as so many schemes of the minority party do of late.

Unfortunately for the Democrats, they are not able to filter news and information today to the extent they did just a few years ago. At a time in the nation’s history where there is a greater need for a party that would gain a majority to engage in rational discussion with the people on issues such as this, they are trying everything but rational discussion. The American people deserve better.