It doesn't matter whom the president nominates to the Supreme Court, Democrats will rise up in ferocious opposition. Ted Kennedy was first to get in front of TV cameras to announce that the president will "abuse" his power if the nominee is someone not to Kennedy's liking. Charles Schumer has warned the president to "consult" with the Senate and send up a nominee that is acceptable to the Democrats as the only way to avoid a war.
The president has the constitutional authority and responsibility to nominate the person he chooses. The Senate has the constitutional authority and responsibility to offer "advice and consent." Nothing more.
Consent is expressed by a public, recorded vote of the senators. It should be a vote unclouded by the filibuster-breaking 60-vote super-majority. Nothing in the Constitution authorizes the Senate to impose a super-majority on any presidential nomination. The Senate abused its authority by extending its filibuster rule to presidential nominations.
Many Republicans are reluctant to change this rule because they, too, have benefited by its power. They know that at some point in the future, a Democrat president, and perhaps a Democrat majority in the Senate, will be deciding whom to appoint to the Supreme Court. They don't want to lose the power to block left-wing appointees.
By extending the filibuster rule to presidential appointees, the Senate has watered down the people's power to control their government. a simple majority of the senators the people elect should approve – or reject – all presidential nominees. The constitutional way for the people to approve – or reject – the decisions of the Senate is at the ballot box. This is the procedure set forth by the U.S. Constitution.
The Senate does have the authority to establish its own rules of procedure. It does not have the authority to violate the clear language of the Constitution with those rules. The Constitution stipulates that treaties and constitutional amendments require a super-majority vote. No Senate rule can alter this stipulation. Rules should not alter the majority vote required for presidential nominations.
Democrats have openly threatened to bring legislative activity to a screeching halt if Republicans dare to change the rules to what the Constitution requires. Their rhetoric ratchets up the division between the political left and the rest of the country. The more strident the language, the more obvious the division becomes.
The Supreme Court appointments this president will make will determine the direction of this nation for decades, though there is no guarantee, of course, how any justice will vote on a future case.
There is little in the record of Justice Souter, for example, that would suggest he was appointed by a Republican. The president can only offer his best choice, and the Senate can only approve or reject the nominee.
When the court makes a mistake – as it did in the Dred Scott decision, in the Prohibition amendment and in the Kelo v. City of New London decision – Congress and the people must exercise their power to correct the mistake. The Supreme Court is not the final authority in the United States, even though Nancy Pelosi says that when the court speaks, "This is almost as if God has spoken."
The people are the final authority and the last word. The people elect the president and the Senate, and the people's will should not be distorted by Senate rules or procedural tricks. The people have elected a Republican president and a Republican majority in the Senate. During two campaigns, the president said that Justices Scalia and Thomas were justices he considered to be his models. His election is a strong indication that the majority agree with his assessment.
Those who disagree want a super-majority to decide, so the minority, rather than the majority, can prevail. Should the minority become the majority in the future, they, too, should have the benefit of a simple majority vote on presidential nominees. It is the responsibility of the people to elect a president and senators who most closely reflect their will. In the end, the people get what they deserve.
The Democrats are likely to invoke the filibuster, regardless of whom the president nominates to the Supreme Court. The Republican majority's use of the "Constitutional Option," that is, changing the rules to provide for a simple majority vote on judicial appointments, is the right thing to do and will return the process of government a little closer to what the founders intended.
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