Tuesday, October 18, 2005

More David L

David Limbaugh again discusses the Miers nomination. This time, he addresses the meaning of the advice and consent clause.

[Professor Bainbridge] rejects my contention that the Senate's role should be limited to vetting the nominee's qualifications and character. . . . "Nothing in the text of the clause appears to limit the kind of considerations the Senate can take up."

Bainbridge writes, "To be sure . . . Alexander Hamilton thought the Senate could only reject a nominee for 'special and strong reasons,' but that qualification is nowhere in the Constitution."

But doesn't an "originalist" approach to constitutional interpretation oblige us to inquire what the Framers understood the meaning of "Advice and Consent" to be? Surely Hamilton's Federalist 76 cannot be dismissed so casually if it gives us some insight as to the Framers' original understanding.

Hamilton wrote: "To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration."

Limbaugh points out that how the conservatives and Repbulican Senators treat Miers may impact future judicial confirmation decision making.

If conservatives do press the Senate to reject her, they better be sure to do so on grounds consistent with those they've urged rejection of judicial nominees in the past, and with those they would like to see urged in the future. Aside from whether my relatively narrow view of "Advice and Consent" is correct, I believe I can safely say that in practice, conservatives have certainly given this view de facto credence.

If Republicans thought they could properly reject the president's judicial nominees for political reasons alone, or on the basis of judicial philosophy, they've certainly done their best to prove otherwise. How else do you explain their overwhelming affirmation of the radically liberal and activist Ruth Bader Ginsburg?

By contrast, Democrats, since Judge Bork's nomination, have often -- though not always -- rejected qualified nominees purely for reasons of politics and judicial philosophy.

Of course, Limbaugh points out that this contrast is harmful to Republicans. It guarantees losing in the long term. But what does one do when forced to choose what is right from fighting in the mud with Democrats?

He ends seeming to endorse the tit for tat approach, which left me confused.

Perhaps someone can tell me what Limbaugh's position is at the end of the day. Follow the right path, or play in the mud with the pigs?


At 1:03 PM, Blogger Cassandra said...

First of all, it seems to me he is saying that if conservatives lobby Senate Republicans to reject Miers, they are eroding the tenet of presumptive deference to the Presidential power of appointment, long one of the only things that has united the Rethug vote on judicial nominees, thereby putting a knife into the hands of the DNC. When you add this to the fact that Rethugs have traditionally only voted against if the nominee was clearly unqualified or of poor character while the Dems now require a political litmus test, you have virtually assured no truly conservative candidate will ever be confirmed again.

I could not agree more - I have been trying to make this point for weeks to no avail.

KJ, my position on this all along is that the opposition is watching everything that goes on and you'd best believe it will all become part and parcel of the playbook from here on out. That is why we have rules.

We are getting farther and farther from a rules-based society and closer to an outcome-based society - this approach (what some conservatives are saying: that we cannot "trust" the process to vet the nominee and so they are justified in scuttling her candidacy without a hearing) is really not one I want to see succeed on principle.

It says, in effect, it's OK for anyone to circumvent the process if they no longer "trust" it. Well trust is subjective, isn't it?

That claim may or may not be justified in this case, but raise your eyes a bit and look at the consequences down the road.

That sort of thing is what we have justly derided the Democrats for doing for years. Not only have we just lost the moral high ground, but if this succeeds, it will set a precedent we may well come to regret in future.

At 2:48 PM, Blogger KJ said...

This comment has been removed by a blog administrator.

At 3:30 PM, Blogger Cassandra said...

Did you even read my comment KJ? You said you were confused and I attempted to answer your question.

re: it is PERFECTLY OK for conservatives to pressure Bush to change his mind. Limbaugh actaully says that, too.

Where did I suggest otherwise? I said nothing about Bush, did I? Anywhere in my comment. I limited my comment to:

if conservatives lobby Senate Republicans to reject Miers


In re: You are arguing against someone else's position

I believe I stated quite clearly what some conservatives are saying: that we cannot "trust" the process to vet the nominee and so they are justified in scuttling her candidacy without a hearing


I think I'm back to not commenting on this anymore.

At 3:33 PM, Blogger Cassandra said...

And no, I'm not mad, or even irritated. I just mistook your rhetorical question for a serious one.

[removing rhetorical hook from rhetorical mouth]

At 3:52 PM, Blogger KJ said...


Forget my response. Let's pretend it didn't happen.

Don't stop commenting. You were trying to answer the question, and I read right past it.

I'm brain fried.

At 6:24 PM, Blogger Cassandra said...

You and me both :)

What is it about this issue that turns us all into rhetorical pretzels?

Sorry if I sounded grouchy - I'm under the gun myself and taking quick breaks when the panic starts to rise.

At 7:51 PM, Blogger Pile On® said...

I was going to urge Republican senators to slam their huevos in a car door over this nomination, but I am not sure they would be able to even if they wanted.

At 8:02 PM, Blogger Cassandra said...

Do Republican Senators (the male ones, I mean) even have huevos Pile?

Let's try to confine this discussion to the real world, shall we?

At 8:26 PM, Blogger Pile On® said...



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