Constitutional Cowards
Seven cowardly Republicans joined seven weak-hearted Democrats in opposing Senator Frist and 48 other Republicans (with possibily a few constitutionally-closeted Democrats) selfcongratulatorily signing a Memorandum of Understanding (”MOU”) preserving the judicial filibuster.
Interestingly, the 14 Senators who signed the MOU explicitly favor the Senate Rules over the U.S. Constitution:
We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.
Notice that the 14 Senators did not say consistent with the U.S. Constitution. Authoritatively, it does not matter what the 14 Senators think the U.S. Constitution says what matters is what the Constitution does say. The Constitution does not require 60 votes (a supermajority) to confirm a judical appointment–only 51 are required. The following is a “constitutional” perspective (i.e., radicial and extra-constitutional) on the judicial confirmation process by one of the signatories Senator Joseph Lieberman (Democrat from Connecticut):
We are in much better shape as a country if we can look forward with much more of a sense of confidence and with a sense of pride that we have fulfilled the values and the purpose that the Founders of this country put in the judiciary if we require 60 votes. That is what is on the line. The nuclear option would blow that up and say it would require 51.
. . .
. . . Over the years, and I must say my attitude has changed on this as I have watched the Senate become more partisan and polarized, it seems to me, and now I am speaking more broadly than the judicial nominations which will be the focus of the nuclear option if the button is pushed, that in a Senate that is increasingly partisan and polarized–and therefore, unproductive–that the institutional requirement for 60 votes is one of the last best hopes of bipartisanship in moderation because to not only confirm a judicial nominee but to pass legislation, if you have the right to demand 60 votes, and the President proposes legislation, individual Members of the Senate do so, you have to go beyond the Members of your own party.
Is this the voice of the Constitutional text? Is a 60 vote requirement found in the Constitution? Hardly. Senator Lieberman’s historical stretch (one that he admits is a change in “attitude”) usurps his right as Senator to modify the Constitution (the procedure to amend the Constitution is found in Article V not the stark interpolations buzzing inside your head, Senator). Moreover, this perspective is extremely dangerous given that a 60 vote requirement could one day turn into a 65 vote requirement if another Senator expressed similar concerns of “bipartisanship.”
The Constitution is a written monument carved in black ink that if properly read and adhered to difuses the present Constutitional Crisis regarding the filibustering of presidentially-nominated judicial nominees. However, a cabal of 14 carries with them a different constitution–a MOU–in their pocket. Time will then what kind of poltical price will be paid by these extra-constitutionalist Senators.