Senators Re-Writing History
Our thanks to Confirm Them, for pointing to a a Hardball Transcript, in their post entitled, June 6 Hardball. Senator Byrd’s comments on Hardball are as follows:
“Well, it means exactly what it says. The president shall have the power to appoint, and, by and with the advice and consent of the Senate, shall appoint certain officers of the United States, including judges to the Supreme Court.
Now, what you have here is an attempt to pack the courts. FDR tried that in 1937. He failed, because the Senate filibustered and the people became informed as to what was going on. Here we are. We’re talking about federal judges, people who are appointed for a lifetime, for a lifetime, on the federal bench. And the president shall appoint by and with the advice and consent.
Well, there has been a lot of talk about the consent, how it should be. The president and certain others in the Senate have said that there should up-or-down votes, that these people deserve an up-or-down vote.
Well, the Constitution doesn’t say they may have an up-or-down vote. It simply says, “by and with the advice and consent.” And, consequently, a lot of these people have been nominated under various presidencies to serve on the courts, some of them have been bottled up in the committees. They’ve never been sent to the floor, for the floor to have a vote.
So, it all boils down to exactly what the Constitution says, “By and with the advice and consent of the Senate, he shall appoint judges of the Supreme Court.”
Well, John Warner and I, we felt that there had been a lot of talk about the consent factor and whether or not they should have an up-or-down vote. But not enough attention was given to the advice element in that constitutional provision.
So, we wrote language in the agreement saying that there should be consultation with the Senate. We thought that the chief executive, he would consult with the Senate. He didn’t. The president doesn’t have to take our advice, but he certainly ought to let us in on the takeoff as well as on the crash landing.”
There are two points to Senator Byrd’s statement above, that would cause us to review the facts.
First, as Confirm Them points to the real story of how the Senate did not filibuster FDR’s Supreme Court nominees. Second, we should point out that that the Constitution does not say “in consultation with the Senate”, it says the President shall nominate. The Senate’s only role is to consent by an up or down vote.
In the story above, the real reason for not having a filibuster is as follows:
“To be sure, the opposition, with its estimated forty-four votes, might well mount a filibuster, but many doubted that a filibuster would succeed. Roosevelt’s opponents, who had been charging him with perverting the democratic process, would be in an embarrassing position if they sought to deny the people’s representatives in Congress an opportunity to vote and thereby contrived the triumph of the will of a minority. Nor did no-holds-barred hostilities appeal to party moderates. “Among the conciliatory Democrats,” noted The New York Times, the filibuster was “losing favor. They have apparently come to the conclusion that the party would not present a pretty spectacle to the country by engaging in that kind of warfare.”
We would hope that Senate Democrats would soon come to the same conclusion. The sustained filibustering of Presidential nominees has already cost them honor, prestige, and the confidence of the American people.
