Senate Confirmation Tricks - Pandering to the Right

Today a Battle Royale on the Senate floor begins regarding an attempt to bypass a Democratic fillibuster of one of the President's nominees. This has been cast as an attempt by the Republicans to change the rules so that every nominee gets an up and down vote in the Senate. If only this were the case.

Changes to the Senate Rules take 67 votes. These are votes the Republicans don't have. Instead, the Republicans are seeking to play fast and loose with the rules by seeking a ruling from the Chair that a vote may take place regardless of the inability to get cloture and are seeking to back it up by majority vote. This is not a change to the rules. The Democrats have promised to use every tactic available to them to bring the business of the Senate to a halt, which should be high drama.

This flap shows a weakness in the rules, that a simple majority can be used to back up a ruling of the chair. If any rule needs to be changed, it should be that one. To be consistent, either the fillibuster must be abandonned in all cases or a 67 vote rule be put in to enforce challenges of rulings from the chair.

This situation has also been cast in pro-life terms. Sadly, this is not the case. Except in the case of Supreme Court nominees, abortion questions are governed by the Roe and Casey decisions. No federal judge is going to overturn these nor should they. Given the federal judiciary's role in enforcing the 14th Amendment, as given to it by Congress, no fetus has standing prior to viability. Congress could change that, given its power to enforce the amendment. It has not chosen to do so. Those who believe that an activist judiciary is going beyond it constitutional powers should reexamine their understanding of the court's role in enforcing the 14th Amendment vis-a-vis state legislative and constitutional majorities.

It must be pointed out that so-called "socially conservative" judges have done nothing for the social conservative agenda. What they have done is gutted consumer and worker protections. In short, they have ruled as economic conservatives, not social conservatives - often to the detriment of the interests of the socially conservative Republicans who support their nomination.

Why then, is the socially conservative leadership deploying forces in this flap? To give the appearance of action. It is likely that sometime this year some federal court will affirm that gays have an equal protection right to marriage. Justice Scalia all but said this in his dissent on the Texas sodomy case. With the overturning of a partial birth abortion ban that was blatantly unconstitutional and the quite proper rulings in the Terri Schaivo case, the social conservatives don't have much hope of judicial victory. This flap gives the appearance that something is actually happening on the conservative judicial front. In other words, this flap is not about power, as the liberals have stated, it is about PANDERING to the base (and allowing the other side to do the same).