Miers and “Every Nominee Deserves a Vote”

David Broder makes a rather odd argument that I have seen echoed elsewhere since Harriet Miers withdrew from consideration for the Supreme Court.

President Pushover (WaPo, A26)

[Judge Samuel Alito’S] record entitles him to the serious consideration and questioning he will undoubtedly receive from the Judiciary Committee. But after Bush acquiesced in the conservative movement’s uproar denying Miers her chance for an up-or-down Senate vote, or even a hearing in that committee, there is no plausible way the White House can insist that every major judicial nominee deserves such a vote.

That was the rationale behind the threatened “nuclear option” in the Senate, the mid-session rule change that would have banned judicial filibusters. If the mass of Democrats and a few Republicans who may be dismayed by Alito’s stands on abortion and other issues can muster the 41 votes needed to sustain a filibuster under current rules, they now have precedent for using their power.

The conservative screamers who shot down Miers can argue that they were fighting only for a “qualified” nominee, though it is plain that many of them wanted more — a guarantee that Miers would do their bidding and overrule Roe v. Wade . But whatever the rationale, the fact is that they short-circuited the confirmation process by raising hell with Bush. Certainly there can be no greater sin in a sizable bloc of sitting senators using long-standing Senate rules to stymie a nomination than a cabal of outsiders — a lynching squad of right-wing journalists, self-sanctified religious and moral organizations, and other frustrated power-brokers — rolling over the president they all ostensibly support.

Well, no. Broder’s main argument–that President Bush is looking weak at the moment–has its merits. But the idea that the withdrawal of the Miers nomination renders the “up-or-down vote” argument hypocritical is nonsense.

The Republicans have argued that the Senate owes presidential nominees the courtesy of a vote, since the Constitution clearly puts the Senate the a reactive position of offering advice and consent. Specifically, it is argued that a minority of Senators should not be allowed to derail a nominee who has the votes to be confirmed. Nothing in that argument applies to the right of a president to withdraw a nominee who is deemed unworthy or to that of a nominee to withdraw rather than be subjected to further ridicule.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. dfsdf says:

    If anything it makes Bush look like a complete idiot since the White House insisted for three weeks that his crony was the best qualified person in the country to be appointed to the court.

    His embrace of a twisted notion of affirmitive action in this case was especially appalling.

    If he wasn’t such a weak-willed flip-flopper Bush would have insisted on hearings for Miers.

    Obviously his alleged “strong resolve” that Rove and his handlers consistently play up is a foolish myth.

  2. Barry says:

    “The Republicans have argued that the Senate owes presidential nominees the courtesy of a vote, since the Constitution clearly puts the Senate the a reactive position of offering advice and consent.”

    Only once Bush was president; when Clinton was president, they didn’t care about courtesy.

    ” Specifically, it is argued that a minority of Senators should not be allowed to derail a nominee who has the votes to be confirmed.”

    Which is a very different position from that outlined in the first sentence of your post.

    “Nothing in that argument applies to the right of a president to withdraw a nominee who is deemed unworthy or to that of a nominee to withdraw rather than be subjected to further ridicule. ”

    True.

  3. James Joyner says:

    dfsdf: Bush can’t win on this one. If he forced a vote on Miers despite the fact that it was clear both sides thought it a bad nomination, it would be further evidence that he is stubbornly wed to ideas even after proven wrong. If he adjusts course, he’s dubbed a flip flopper.

    Barry: Republicans didn’t filibuster Clinton nominees; they had the majority. I agree that they should have gotten floor votes but defeat in committee by the majority has the same result.

  4. SoloD says:

    Most of the Clinton nominees who didn’t get votes didn’t lose in committee, they were held up through blueslips, or denied a confirm hearing at all. That was the procedural method the GOP used in the 90’s. Since they were in the majority, to use your argument, they should have simply voted them down in the Senate.

    But they knew that they couldn’t get a majority for that, so they used blueslips so that the conservative minority could overrule the moderate/liberal majority. It is just another Senate procedural method. The anti-filibuster argument can’t hold any intellectually honest water unless you condem the GOP’s actions in the 90’s.

  5. James Joyner says:

    I don’t know the specifics of those cases. I know Jesse Helms did something similar with respect to diplomatic nominees, a practice which I opposed. I think the blue slip rule should be eliminated, too.

    As a general matter, I think presidents of either party deserve great deference in getting their nominees passed. Aside from geniune kooks like Lani Guinier (which Clinton himself pulled), nominees who don’t have major ethical issues and who are qualified by resume should be confirmed.

  6. Nothing like reading comprehension problems to brighten up your day:

    SoloD: “The anti-filibuster argument can’t hold any intellectually honest water unless you condem [sic] the GOP’s actions in the 90’s.”

    James, earlier: “I agree that they should have gotten floor votes”

    Ah, James didn’t use the “c” word. Now I understand, we need to embrace each other’s overheated rhetoric to find agreement on things…

  7. dfsdf says:

    Bush can’t win on this one. If he forced a vote on Miers despite the fact that it was clear both sides thought it a bad nomination, it would be further evidence that he is stubbornly wed to ideas even after proven wrong.

    The whole fiasco damaged his credibility with me–a lifelong Republican. As far as I’m concerned, his judgment is exceptionally questionable. I was actually glad to see Reid close the Senate yesterday–Phase II of the Senate Intel investigation is essential at this point.

    If there is any hope for the sanctity of the Constitution, the Senate–and House–needs to start doing their job in checking the Executive.

  8. Steven Plunk says:

    Elections matter.

    Bush’s nominee was pulled because of unanticipated objections by the people who elected him. I would assume in a representative democracy listening to the voters is a good thing. That doesn’t mean doing everything they want but in this case the prudent choice was made and the nominee withdrawn.

    Since the President can’t trot out potential nominees for public display and gauge acceptance we should expect this sort of thing now and again.
    It’s really not that big of a deal to most citizens.

    So he and his advisors made a mistake, a minor one.

  9. RA says:

    Broder is a left-wing water carrying hack. Never believe anything he writes until it has been confirmed by a reliable source.

  10. Don says:

    …but would Bush have pulled Miers’s nomination if the right wing hadn’t demanded that he do so? Its one thing for Bush on his own to pull his nominee, but if he was forced to do so by conservative whiners, then it seems to me that Broder’s argument has merit.

  11. bryan says:

    I’m getting really tired of the saw that Bush caved to the “radical right wing” of his party. Miers was supported by the likes of Richard Land (SBC political hack), James Dobson (Focus on the Family uber-politico), and Jay Sekulow (religious right lawyer).

    OTOH, Miers was opposed by George Will, Charles Krauthammer, and Bill Kristol. Apart from Kristol, whose social policies I’m not really familiar with, I wouldn’t call any of those guys the “radical right wing” of the conservative movement.

  12. James Joyner says:

    Don: I think the arguments by the “conservative whiners” were persuasive and, indeed, many of them happened to be United States Senators. Ultimately, the judgment was made–by Miers, Bush, or both–that she was going to lose and that it made sense to stop the bleeding.

    Bush’s weakness was in choosing a crony to begin with, not in accepting her withdrawal.

  13. Barry says:

    James: “Barry: Republicans didn’t filibuster Clinton nominees; they had the majority. I agree that they should have gotten floor votes but defeat in committee by the majority has the same result.”

    a) In that case, nominees are *not* owed the courtesy of a floor vote. You’re contradicting yourself.

    b) A large number of nominees (40-60) never even got to a committed vote, because of Hatch’s blue slip rules.

    c) For both a and b, a too-convenient plea of ignorance about procedures and political history, made by a political science professor, is not acceptable.

  14. James Joyner says:

    Barry:

    a) Stopping a nominee with a majority of support using procedural matters is problematic, circumventing the Constitution. Defeating them in committee by up-or-down vote is not.

    b) And I agree that this is a bad thing. I understand that Senatorial courtesy has a long tradition and that Senators from a nominees home state need to be on board or the nominee will have trouble. But it got out of hand in the 1990s and has stayed that way.

    c) I’m not a political science professor anymore, nor was Congress a speciality. My expertise is national security policy and international conflict, not the legislative branch.

  15. Barry says:

    James,

    In (a) you make a claim about ‘circumventing the Constitution’. What do you mean by that? If you meant the fillibuster, that wouldn’t. Appointments are made with the ‘advise and consent of the Senate’, but that doesn’t require that the Senate consent to an appointment. Second, the nasty trick used by the GOP in the 1990’s was to deny many nominees even a committee up-or-down vote, by simply not acting on a nomination. Third, in your original post you mentioned that “The Republicans have argued that the Senate owes presidential nominees the courtesy of a vote,…”, you have now retreated from that quite a bit.

    In (b) perhaps you should mention *who* made things get out of hand in the 1990’s. IIRC, it was your party.

    My apologies on c), but it doesn’t excuse you. Your statements are contradictory.