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National NewsConservative News
No Basis for Judicial Filibuster
By Gary Palmer
Posted on: May 6, 2005
An article in the May 1st edition of the Birmingham News Commentary section entitled The Framers vs. Sen. Frist by Professor David E. Kyvig, sheds considerable light on the efforts of liberal "revisionists" to manipulate the public in regard to the Senate's role in confirming judicial appointees.
Just like the liberal activists judges that make up Constitutional rights out of thin air, Prof. Kyvig appears to have done the same thing with the confirmation of federal judges. Kyvig argues that the Framers of our U.S. Constitution intended a higher consensus to confirm federal judges because they believed that decisions that bound the nation for long periods of time needed more than a simple majority for approval. That is why they wrote into our Constitution a requirement for a two-thirds vote to ratify a treaty, two-thirds for impeachment and two-thirds to amend our Constitution.
Apparently Kyvig takes the position that because the Framers required a supermajority of votes for ratification of treaties, approval of amendments and impeachment, they really meant to apply a supermajority requirement for judicial appointments as well. Since our Constitution makes no such requirement, I guess Kyvig would say the Framers just forgot to put that in.
Not likely.
The architects of our Constitution labored for four months over its writing and every clause and line was debated and discussed in finite detail. For example, Roger Sherman of Connecticut, insisted that a comma be inserted in place of a semicolon in a clause that enumerated Congressional powers because he thought the semicolon implied an independent power to tax not granted by the Constitutional Convention. Given such scrutiny, it is extremely unlikely that the Framers simply forgot to require 60 votes to confirm the President's judicial appointees. The fact is, the records of the Constitutional Convention show that the Framers knew exactly what they were doing by requiring a simple majority of senators to confirm appointments to the federal judiciary.
The first draft of a plan for a new government was presented at the Constitutional Convention on May 29th by Governor Edmund Randolph of Virginia. The Virginia Plan, which was most likely written by James Madison, gave Congress the power to appoint judges. However, as the Convention progressed opposition arose resulting in proposals to vest the power to appoint federal judges in the President. Interestingly, on July 31st Madison proposed appointment by the President unless two thirds of the Senate disagreed (emphasis added).
In other words, instead of requiring a supermajority to confirm a judge, as Prof. Kyvig claims the Framers intended, Madison recommended a supermajority of two-thirds to defeat a nomination by the President. This is the exact opposite of what the liberals now claim.
It was also suggested that the Senate appoint judges to the federal courts. That idea was rejected because with each state having equal representation of senators, there was legitimate concern that a majority of smaller, less populous states would result in a minority of the populace having control over the federal judiciary.
The deliberations continued through the summer of 1789 until on September 4th it was proposed to vest the power of making treaties and appointments, including ambassadors and judges, in the office of the President with the advice and consent of the Senate. In other words, the Framers considered giving the power to appoint federal judges to the Senate but deliberately gave that power to the President instead with no mention of any supermajority for confirmation.
If the Framers of the Constitution had thought it prudent to require a two-thirds or three-fifths vote, they would have included that requirement. But they intentionally did not. In fact, it was argued that even giving the Senate an "advise and consent" role would make the President a minion of the Senate and thus subordinate the office of the Presidency to the legislative branch.
A careful reading of the deliberations of the Framers at the Constitutional Convention make it clear that the argument that we now need 60 votes to confirm a federal judge is a blatant misrepresentation of the Framers' intentions. It is another example of how liberals work to bypass the Constitution and impose their agenda on the rest of the nation, usually against the will of the majority. This is the very thing that the Framers wanted to avoid by taking the appointment power away from the Senate.
What does this mean in the context of the debate over changing the Senate rules to eliminate the filibuster of the President's judicial appointees? It means that the rules of the Senate, which are written and adopted by the Senate and not the people, should be made subservient to the Constitution and the people.
The rules of the Senate are not sacrosanct and they are not above or even equal to the Constitution. Despite what the liberals say, the Framers gave us a Constitution that is a contract between the people and their government. And in that contract the power to appoint judges resides with the President and that power is not to be diminished by a minority of liberal obstructionists senators.
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