WSJ: The Byrd Option -- II (Democrats given the Byrd)

Wall Street Journal ^ | March 30, 2005 | Editorial

[OESY]

Robert Byrd is an expert on Senate rules and procedures, on which he has written a four-volume history. So we paid notice when a friend called our attention to the West Virginia Democrat's latest pronouncement on the confirmation of President Bush's judicial nominees.

Shortly before Congress recessed for Easter vacation, here's what the Senator said on Fox's "Hannity & Colmes": "The President is all wrong when he maintains that a nominee should have an up-or-down vote. The Constitution doesn't say that. The Constitution doesn't say that that nominee shall have any vote at all. There doesn't have to even be a vote."

As the Senator says, Article II of the Constitution is silent on how the Senate shall exercise its "advice and consent" power in confirming judicial nominees. For more than 200 years, however, that body has interpreted the Founders' injunction to mean that a simple majority of Senators -- 51 in our age -- must vote to confirm. That's why we cried foul in President Bush's first term when Democrats filibustered 10 appeals-court nominees, thereby denying them an up-or-down vote on the floor -- even though every candidate had the support of a bipartisan majority. A vote to end a filibuster requires a super-majority of 60 Senators.

But now that Senator Byrd has expressed the view that the Senate doesn't have to vote at all, here's a better idea for ending the impasse over judicial nominations: Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates. Under Mr. Byrd's Constitutional analysis, the Senate will have exercised "advice and consent" and the judges will be confirmed.

[OESY]

RELATED COMMENTARY: The Byrd Option (03/07/05) http://online.wsj.com/article/0,,SB111015902040271823,00.html?mod=article-outset-box (subscription)

[The Ghost of FReepers Past]

Yep, I read this over coffee this morning. Not a bad idea at all.

[YOUGOTIT]

Lets do it!!!!!

[OESY]

FR links:

The Byrd Option

The Byrd Option: The former Senate leader knew how to break a filibuster

[hobbes1]

I f*ng love that idea.

[KentTrappedInLiberalSeattle]

But now that Senator Byrd has expressed the view that the Senate doesn't have to vote at all, here's a better idea for ending the impasse over judicial nominations: Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates. Under Mr. Byrd's Constitutional analysis, the Senate will have exercised "advice and consent" and the judges will be confirmed.

Works for me! :)

[skinkinthegrass]

Excellent.. :D

[Arkie2]

It sounds good but you reap what you sow. This would be a fine precedent for a future dem senate and president. Don't tell me that will never happen again.

[carlr]

Read that this morning as well,very interesting take on the affair.
I bet if it was tried it would be the dems calling Byrd a senile old fool instead of us saying that.

[layman]

Sounds like a great idea, as is the 'nuclear option', as is the notion that a filibuster should be an actual filibuster rather than the mere 'threat' of a filibuster. Unfortunately, the majority party suffers from lackaspine.

[nightdriver]

This would effectively kill any filibuster.

If a majority of senators signed a bill, it passes, just like the way they signed the Declaration of Independence over 200 years ago.

Like Byrd said, the Constitution does not specify the format in which the Senate has to "pass" issues.

Looks like Byrd has outsmarted himself, big time!

[Common Tator]

Don't tell me that will never happen again.

Always in the past both Democratic and Republican minorites allowed a presidents nominees to get an up or down vote. That is how we got a liberal judiciary.

Now for the First time the Democrats are using filibuster to keep Bush from putting conservatives on the court.

So what will happen under your way. The Republicans will not filibuster Democrat nominees when we have Democrat Presidents. Republicans like McCain, Chaffee, Snowe and the rest will not allow a fillibuster when Democrats are in power. Democrats,when in power, will continue to fill the courts with liberals. But Democrats will filibuster Conservative nominees when Republican presidents are in office.

You apparently think no one should ever stand up to Democrats. That is always the fearful reaction of sure losers.

[Arkie2]

Well, I guess you told me! LOL! Lighten up Frances.

[tarheelswamprat]

If a majority of senators signed a bill, it passes, just like the way they signed the Declaration of Independence over 200 years ago.

Not at all. This has nothing to do with "bills". The Constitution does specify a vote for bills; it is only silent on the specific procedure for "Advice and Consent" on judges and other appointed officials.

[nightdriver]

"The Constitution does specify a vote for bills...

Yes, but it does not specify the means by which that vote is taken.

Article 1, Sections 5 and 7 say that the vote is to be by "yeas and nays," but that in no way precludes a silent vote by signing an issue and passing it in to the chair.

The entire phenomenon of filibustering is only a creation of the internal rules of the Senate, it is not based on anything in the Constitution.

[chudogg]

Of course liberals and the media would be screaming at the top of their longs, actively ignoring their own unconstitutional actions.

[AFPhys]

I believe that the Declaration of Independence required the unanimous consent of the colonies, and that for at least most of them that meant a majority of the delagates attending from that colony. In any case, the Declaration was unanimously signed by those present. Herewith part of Jefferson's documentary:

http://www.ushistory.org/declaration/account/index.htm

On Monday, the 1st of July the house resolved itself into a committee of the whole & resumed the consideration of the original motion made by the delegates of Virginia, which being again debated through the day, was carried in the affirmative by the votes of N. Hampshire, Connecticut, Massachusetts, Rhode Island, N. Jersey, Maryland, Virginia, N. Carolina, & Georgia. S. Carolina and Pennsylvania voted against it. Delaware having but two members present, they were divided. The delegates for New York declared they were for it themselves & were assured their constituents were for it, but that their instructions having been drawn near a twelvemonth before, when reconciliation was still the general object, they were enjoined by them to do nothing which should impede that object. They therefore thought themselves not justifiable in voting on either side, and asked leave to withdraw from the question, which was given them. The committee rose & reported their resolution to the house. Mr. Edward Rutledge of S. Carolina then requested the determination might be put off to the next day, as he believed his colleagues, tho' they disapproved of the resolution, would then join in it for the sake of unanimity. The ultimate question whether the house would agree to the resolution of the committee was accordingly postponed to the next day, when it was again moved and S. Carolina concurred in voting for it. In the meantime a third member had come post from the Delaware counties and turned the vote of that colony in favour of the resolution. Members of a different sentiment attending that morning from Pennsylvania also, their vote was changed, so that the whole 12 colonies who were authorized to vote at all, gave their voices for it; and within a few days, the convention of N. York approved of it and thus supplied the void occasioned by the withdrawing of her delegates from the vote.

Congress proceeded the same day to consider the declaration of Independence which had been reported & lain on the table the Friday preceding, and on Monday referred to a committee of the whole. The pusillanimous idea that we had friends in England worth keeping terms with, still haunted the minds of many. For this reason those passages which conveyed censures on the people of England were struck out, lest they should give them offence. The clause too, reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who on the contrary still wished to continue it. Our northern brethren also I believe felt a little tender under those censures; for tho' their people have very few slaves themselves yet they had been pretty considerable carriers of them to others. The debates having taken up the greater parts of the 2d 3d & 4th days of July were, in the evening of the last, closed the declaration was reported by the committee, agreed to by the house and signed by every member present except Mr. Dickinson.

[The Iguana]

I'll take the risk.

IF a Democratic president has 51 votes to get his nominee through, he deserves to have him confirmed whether I like it or not.

[AFPhys]

Go 'Tator Go!!! Tell it like it is!

[Kenny Bunkport]

Robert Byrd is an expert on Senate rules and procedures

An expert on "obstruction," they mean.