Senate Judicial Confirmation & Filibuster Mess

The Senate debate over whether to change the filibuster rules as regards the confirmation process for Presidential Judical nominees continues to rage. I have pondered this for a long time (see posting here), strongly inclining towards the Republican position. Over the past two days, however,Hugh Hewitt has come up with two brief comments that have struck me a clinching the argument for Republicans.

First, Hugh wrote this telling paragraph yesterday:

The fact is that Senate Democrats want to enshrine a new rule --a 60 vote rule-- for judicial confirmations.

Is that how the "advise and consent" role of the Senate is to be interpreted from now on? How ridiculous! Confirmation is and has always been by majority vote. The clear intent of the U.S. Constitution is that, after the "advising and consenting" are over, the Senate then gets to decide whether to approve or reject the nomination. Winners win. Losers lose.

In over 100 years Senators have never once used the filibuster to prevent a Circuit Court of Appeals nominee from being voted on by the Senate as a whole. That is, until the Democrats became a Senate minority in 2003. It is the Democrats who have abused the rules and broken with tradition and the "way things have always been done." They have violated an unspoken trust and, given the serious nature of their blockade of due constitutional process, they deserve to be spanked and put on time-out like the misbehaving children they are acting like.

Today, Hugh added another zinger; this time in response to this comment by Democratic Senator Reid earlier today. First, Reid:

"The Senate is not a majoritarian body. My good friend from Utah (Orrin Hatch) got up and spoke. I think he represents about 2 million people in Utah. I represent 19 million in New York State. We have the same vote. You could have 51 votes for a judge on this floor that represents 21% of the American people. So the bottom line is very simple. This has not always been a 50.1 to 49.9 body. It has been a body that has had to work, by its rules, and by the Founding Fathers' intent, that even when you are in the majority, you have to reach out and meet, not all, not most, but some of the concerns of the minority."

Hugh's response to all of Reid's comments can be found here. More specifically, here is what Hugh wrote about one of Reid's big points in the quote cited above:

"....if Senator Schumer is worried about 51 senators representing 21% of the people confirming a judge, take the 41 senators from the smallest states those 51 represent, and you have a group of senators from an even smaller population base with the theoretical ability to block any and all federal judicial confirmations. Does he seriously want to argue such an absurd point as a matter of constitutional doctrine."

Let's see what that means..... It means that Senator Reid is arguing that 41 Senators representing 10.9% of the population should be allowed to block the President's judicial nominees. I agree with Mr. Hewitt. This is not an argument that is going to get the Democrats very far.

I don't believe that this, in any way, can be twisted into representing a fair illustration of the Senate's power to "advise and consent."