# What's the REAL issue with the Senate's judicial confirmation process? **URL:** \ **Category:** Great Debates\ **Created:** [April 26, 2005, 4:24pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179 "2005-04-26T16:24:10Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 26, 2005, 6:35pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/21 "2005-04-26T18:35:05Z")
> [@John Mace](#): > > What you **don** ’t get is that there are different, legitimate schools of thought on how SC justices should interpret the constitution, and these schools of thought (eg, Textualism or Originalism) are not evil. See above. WRT Owen, Pryor, Brown and Myers, the conflict is not between textualism or originalism on the one hand and judicial activism on the other; it is between pro-conservative judicial activism and pro-liberal judicial activism. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 26, 2005, 6:35pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/22 "2005-04-26T18:35:07Z")
> [@Homebrew](#): > > It’s right up there with Amendments IX and X. Short, snarky, and directly on target. Well done. > [@Bricker](#): > > The Senate’s role is to advise and consent, which is why the Senate must approve his appointees. The Senate doesn’t get to make any decisions, or that matter do any advising, just pound the rubber stamp? That’s an unusually silly assertion. Did you also think that when Jesse Helms prevented so many Clinton appointees from even having committee hearings? :rolleyes: **John Mace** , take note - he meant it. The “battle” has to be over the \*next \* Justice, or Bush will feel empowered to press another tighty righty the second and subsequent times. He’s gotten too used to thinking the full Senate will just roll over for him, the way **Bricker** thinks is their responsibility. If he’s not allowed to succeed now, he may be inclined to be more reasonable, more of the promised “uniter” in the future. When does it stop? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 26, 2005, 6:36pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/23 "2005-04-26T18:36:27Z")
> [@Bricker](#): > > You expressed surprise that the Bush administration hadn’t found any center-left candidates; I pointed out that they weren’t looking for any. Whoosh. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 26, 2005, 6:37pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/24 "2005-04-26T18:37:29Z")
> [@Bricker](#): > > Not at all. The Senate’s role is to advise and consent, which is why the Senate must approve his appointees. :rolleyes: That’s probably the stupidest thing you’ve ever posted, **Bricker.** The power to “advise and consent” is meaningless unless it includes the power to **withhold** consent, and at the Senate’s sole discretion. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 26, 2005, 6:41pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/25 "2005-04-26T18:41:45Z")
> [@RickG](#): > > Anyone notice, BTW, that the Republicans are now using the words “constitutional option,” rather than “nuclear option,” and claiming the latter language is a usage exclusive to the “liberal media,” even though the term was coined by Trent Lott? Framing the debate is one thing, but simply lying about the source of language in order to score political points makes me cringe. Especially as “constitutional option” is meaningless and irrelevant in this context, except in the minimal sense that changing the filibuster rule would not, in and of itself, be unconstitutional. That’s because, apart from setting the minimum quorum for doing business, the Constitution says practically nothing about House or Senate rules and absolutely nothing about the right of unlimited debate. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 6:42pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/26 "2005-04-26T18:42:03Z")
> [@Evil Captor](#): > > Now, back when Reagan and Clinton were president, the opposing party in Congress blocked HUGE numbers of judicial nominees from the White House – sixty or forty percent. Simply not true. > [@](#): > > A guy on the Daily Show was saying that the current fight over nominees was about free speech – that the Pubbies would be able ot put anti-free speech zealots in the Supreme Court and gain even more control over the public discourse than they have now. Whoever said this is an idiot. What it boils down to is that the Democrats are engaged in an unprecedented blocking of judicial nominees that the majority of the Senate wants to see confirmed. This sort of thing has never happened before. Even the so-called filibuster of Abe Fortas only lasted a couple of days and from the one vote taken to break the filibuster, it didn’t seem as if he had the support of the majority of the Senate. Never before has a minority party blocked the will of the President an the majority of the Senate on judicial nominees. Sure, when the Democrats ran things under Reagan they blocked a few nominees, but they were the majority party. Similarly, the Republicans stymied a few of Clinton’s nominees. But again, they are the majority party at the time. The majority exercised its will in those cases. Here, however, the minority is doing something they have never done before. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 26, 2005, 6:48pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/27 "2005-04-26T18:48:38Z")
> [@Renob](#): > > This sort of thing has never happened before. “Interesting times,” **Renob.** We’ve seen a **lot** things in the past four years that never happened before. Extraordinary circumstances require extraordinary measures. E.g., neither Reagan nor Bush had the effrontery to nominate judges with the astonishing and outspoken views of Own, Ryan, Brown and Meyers. (You could argue Bork as an exception, but look what happened to him – and if the Dems hadn’t had a Senate majority then, blocking him by filibuster would have been perfectly appropriate in that case.) Extraordinary circumstances require extraordinary measures. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 26, 2005, 6:52pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/28 "2005-04-26T18:52:37Z")
> [@ElvisL1ves](#): > > SThe Senate doesn’t get to make any decisions, or that matter do any advising, just pound the rubber stamp? That’s an unusually silly assertion. Did you also think that when Jesse Helms prevented so many Clinton appointees from even having committee hearings? :rolleyes: **John Mace** , take note - he meant it. I think \*\*Bricker \*\*is using “approve” in the sense of “vote on”-- ie, they don’t HAVE to rubber stamp his nominees, but they should vote on them. If he means it the way you are interpreting it, then I agree with you and not him. That would be a first. 🙂 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 26, 2005, 6:56pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/29 "2005-04-26T18:56:15Z")
> [@BrainGlutton](#): > > See above. WRT Owen, Pryor, Brown and Myers, the conflict is not between textualism or originalism on the one hand and judicial activism on the other; it is between pro-conservative judicial activism and pro-liberal judicial activism. I’d have to see the actual text that the Dems find objectionable. If, in fact, Pryor wrote legal briefs as described, then I’d call him a pro-conservative judicial activist. Brown, OTOH, I am familiar with. I would not call her activist, and the description in your quote doesn’t support the “activist” claim, either. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 26, 2005, 7:00pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/30 "2005-04-26T19:00:57Z")
> [@John Mace](#): > > I think \*\*Bricker \*\*is using “approve” in the sense of “vote on” Only if one of the normal meanings of “approve” is “reject”. > [@](#): > > I agree with you and not him. That would be a first. 🙂 Oh, I doubt that last part. > [@Renob](#): > > Never before has a minority party blocked the will of the President an the majority of the Senate on judicial nominees. Been reading the blogs, have you? ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 7:01pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/31 "2005-04-26T19:01:27Z")
> [@BrainGlutton](#): > > “Interesting times,” **Renob.** We’ve seen a **lot** things in the past four years that never happened before. Extraordinary circumstances require extraordinary measures. E.g., neither Reagan nor Bush had the effrontery to nominate judges with the astonishing and outspoken views of Own, Ryan, Brown and Meyers. (You could argue Bork as an exception, but look what happened to him – and if the Dems hadn’t had a Senate majority then, blocking him by filibuster would have been perfectly appropriate in that case.) Extraordinary circumstances require extraordinary measures. Whatever. There is nothing “extraordinary” about these judges. As Scalia mentioned the other night on C-SPAN, he was confirmed in the 1980’s without a single dissenting vote. That would not happen now. The only thing that has changed in the past twenty years is that the liberals became emboldened when they saw they could defeat Bork. Meyers, Brown, Ryan, Owen, et. al., are certainly conservative. However, that does not mean they are not qualified to be judges. When a Republican is president and he has a Republican Senate, he should be able to appoint conservative judges. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 7:04pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/32 "2005-04-26T19:04:12Z")
> [@ElvisL1ves](#): > > Been reading the blogs, have you? I don’t read any blogs. It’s a statement of fact. ---
**Author:** ![Raygun99](https://avatars.discourse-cdn.com/v4/letter/r/6f9a4e/32.png) [@Raygun99](https://boards.straightdope.com/u/Raygun99)\ **Post date:** [April 26, 2005, 7:12pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/33 "2005-04-26T19:12:46Z")
> [@BrainGlutton](#): > > :rolleyes: That’s probably the stupidest thing you’ve ever posted, **Bricker.** The power to “advise and consent” is meaningless unless it includes the power to **withhold** consent, and at the Senate’s sole discretion. I suspect the operative word in Bricker’s statement is “must”, as in “are required as a part of the process”. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 26, 2005, 7:19pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/34 "2005-04-26T19:19:21Z")
> [@Renob](#): > > It’s a statement of fact. [No, it is not.](http://www.washingtonpost.com/wp-dyn/articles/A45149-2005Mar17.html) ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 7:28pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/35 "2005-04-26T19:28:02Z")
> [@ElvisL1ves](#): > > [No, it is not.](http://www.washingtonpost.com/wp-dyn/articles/A45149-2005Mar17.html) Actually, I don’t think there is any precedent there. One, it only lasted four days, unlike the current situation where Senate Democrats have been blocking the nominees for years. Two, Fortas only had forty-five votes in favor of ending the filibuster. Senate Republicans have fifty-five or fifty-six. ---
**Author:** ![RTA](https://avatars.discourse-cdn.com/v4/letter/r/b4bc9f/32.png) [@RTA](https://boards.straightdope.com/u/RTA)\ **Post date:** [April 26, 2005, 7:34pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/36 "2005-04-26T19:34:04Z")
> [@renob](#): > > As Scalia mentioned the other night on C-SPAN, he was confirmed in the 1980’s without a single dissenting vote. Had he said, “After all the furor and vitriol surrounding the Bork nomination, I cruised through an exhausted Senate; oh and by the way, when they asked me if I had any sort of judicial agenda, I said No, which as we have seen was an outright lie”, then I would say that he was faithfully recounting events as they actually transpired. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 26, 2005, 7:34pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/37 "2005-04-26T19:34:14Z")
Go back and reread your own claim. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 26, 2005, 7:34pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/38 "2005-04-26T19:34:27Z")
> [@BrainGlutton](#): > > The power to “advise and consent” is meaningless unless it includes the power to **withhold** consent, and at the Senate’s sole discretion. But what we are talking about is the desire of a **minority** to prevent the Senate from fulfilling its function. The Democrats are trying to prevent the Senate from doing what it is Constitutionally bound to do. If the power to “advise and consent” is meaningless, the Democrats are the ones trying to render it so. They are the ones trying to prevent the Senate from acting. Regards, Shodan ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 7:44pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/39 "2005-04-26T19:44:01Z")
> [@RTA](#): > > Had he said, “After all the furor and vitriol surrounding the Bork nomination, I cruised through an exhausted Senate; oh and by the way, when they asked me if I had any sort of judicial agenda, I said No, which as we have seen was an outright lie”, then I would say that he was faithfully recounting events as they actually transpired. Well, since Scalia was confirmed in 1986 and the Bork fiasco didn’t happen until 1987, I’m not sure how he would be faithfully recounting events as they actually transpired. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 26, 2005, 7:46pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/40 "2005-04-26T19:46:29Z")
**Shodan** : The constitution is silent on the exact nature of the advice and consent, and Senate should be free to make its own rules about it. In the end, I can’t see that the fillibuster is actually unconstitutional when it comes to judicial nominees. That’s just too much of a stretch. Of course, there’s nothing unconstitutional about the Senate changing the rules of fillibuster either. It’s just that the Republicans have to realize that they are looking like a bunch of bullies on this, as recent [polling numbers](http://www.pollingreport.com/congress.htm#Misc) seem to suggest. The idea that I do like, is to require a fillibuster to be a REAL fillibuster. Make the minority party stand up and read the phone book (or whatever they choose) to block a vote. That would induce the minority party to use the fillibuster more judiciously. [Previous page](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179.md?page=1) [Next page](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179.md?page=3)