Posted by Juan Non-Volokh:
Kmiec on the Deal:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1117051195
Pepperdine law professor Douglas Kmiec [1]doesn't like the judicial
nominations deal. He thinks it lacks principle and betrays the
constitutional design. The founders would have disapproved of judicial
filibusters, he argues, noting that "the framers specifically
considered and rejected in the 1787 convention a 2/3ds Senate
concurrence for judicial appointments." Kmiec further writes:
Anyone critical of the filibuster for denying the entire Senate its
constitutional role should also be honest. Democrats were the first
to deploy the filibuster in a grand way against the judiciary, but
both parties had a myriad of alternative ways in which presidential
nominations were prevented from reaching the floor at all. All
these practices should be condemned as constitutional defaults. The
default comes at the sacrifice of accountability, or what is
popularly termed transparency. Filibusters denying full-floor
action or bottling up nominees in committee both dangerously, as
Hamilton warned, "shut up in private [and make] impenetrable to the
public eye..." the judicial-selection process. . . .
When a minority of the Senate can delay or obstruct a fully-capable
nominee by reason of partisan or ideological disagreement,
"factions," as Madison called them, have taken over and will erode
the independence of the judiciary.
References
1.
http://www.nationalreview.com/script/printpage.asp?ref=/comment/kmiec200505251204.asp
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
