Up or Down?

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I beg to differ with one key point raised in the Scene's otherwise solid editorial this week on Frist and the judicial filibuster. The editorial says:


Constitutional experts don't agree on whether the doc's prescription for judicial up-or-down votes actually flies in the face of what James Madison and his cohorts had in mind. After all, it's a Senate rule Frist wants to change, not the Constitution, which says simply that the U.S. Senate is charged with "the advice and consent" on such nominations.


The constitution is unmistakably clear (Article 1, Section 5) that the Senate determines its own rules of procedure. Those who read into the advice and consent clause (Article 2, Section 2) a voting procedural requirement that supercedes the Senate's autonomy to make its own rules are choosing phantasm over reading comprehension. This is political expedience, not expertise. I challenge pro-nukers to find a single reputable constitutional scholar who argues that the constitution mandates a senate floor vote on nominees, but allows senators to use committee procedures to kill nominations, as Republicans did dozens of times during the Clinton administration.

While I'm at it, a couple of other filibuster links:

A detailed but engaging exchange of views on the filibuster and its use for judicial nominees in the form of a back and forth between two experts appeared in the magazine Legal Affairs three months ago.

Also, those who agree with Frist but missed conservative pundit George Will's column on the filibuster back in March should check it out.

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