ELECTION RESULTS DO MATTER
August 2005
With the nomination of John Roberts to the United States Supreme Court and the President’s recess appointment of John Bolton as United States Ambassador to the United Nations, the American people are getting a timely reminder of just why elections and election results are important.
When you win elections in a democratic system of government such as ours, you immediately are ordained with varying degrees of political power. Among them, the power to propose; the power to dispose; the power to nominate; and the power to consent or reject. And it does make a difference who wins.
Value judgments aside, consider this if you will for a moment: How different would this nation be if just one of three small states with a long history of supporting Democrats—West Virginia, Tennessee or Arkansas—had voted for Al Gore rather than George W. Bush in the 2000 presidential election? Forget Florida. Any one of the three would have put Gore in the White House; and under a Gore presidency, it’s doubtful the American public ever would have been introduced to the persons of John Roberts or John Bolton in the context of the Supreme Court or the United Nations. That’s just one contemporary example of one election with important results.
There are others. What if Tom Daschle had not lost to John Thune in their campaign for the U.S. Senate seat from South Dakota last year? Or two years earlier, if former Vice President and U.S. Senator Walter Mondale had not lost to Norm Coleman in Minnesota in 2002. Or right here at home: What if incumbent Harris Wofford had not lost to Rick Santorum in their 1994 race for the Senate. Again, value judgments aside for the purpose of this discussion, whether George Bush was in the White House or not, the United States Senate in 2005 certainly would have a much different political composition and direction than it does today.
All of this electoral history is important in the context of a President’s power to nominate individuals to high public office and the power of the Senate to pass judgment on the qualifications and the fitness of those nominees. Because Bush won in 2000 and 2004, he has earned the right under the Constitution of the United States to appoint; and because Republicans have been more successful in recent years in winning elections across the country than their Democratic opposition, those appointments have (in the main) found a more receptive audience in the United States Senate.
For the better part of 200 years, Presidents usually got their nominees confirmed, regardless of which party occupied the White House or controlled the Senate. The operative theory was that in the absence of some compelling reason to reject, Presidents were entitled to the nominees of their choice. There were some high profile exceptions, of course. Lyndon Johnson’s nomination of his good friend and longtime ally, Justice Abe Fortas, to be Chief Justice of the U.S. Supreme Court was rejected by the Senate in the mid-1960’s. Even more pronounced—and, as it turns out, the gold standard for future consideration of selected judicial nominees to the federal appellate courts-- was the Senate’s refusal to confirm President Reagan’s 1987 nomination of Robert Bork to the Supreme Court. And John Tower’s nomination to be Secretary of Defense in 1989 had to be withdrawn by President Bush the elder in the face of intense Senate scrutiny of his personal conduct.
But in the Senate’s disposition of these nominations, election results mattered. Fortas was taken down for his professed liberalism by a coalition of Republicans and southern Democrats, even though Johnson’s party held the political majority in the Senate. Senate Democrats also were in the majority when Bork was rejected on philosophical grounds and Tower had to be withdrawn. Democrats had won political control of the Senate and, thus, were empowered by the electorate across the county to control the confirmation process as they thought best.
There are other recent examples in the earned application of political power. In the months leading up to the 1992 presidential election, majority Democrats in the Senate refused to consider a number of President George Herbert Walker Bush’s judicial nominees. They reasoned, and correctly so, that their nominee (William Jefferson Clinton, as it turned out) had a real shot at the Presidency. They were not about to deny him the right to fill these posts through his appointive powers if he were successful. When Republicans controlled the Senate in Clinton’s term, they refused to schedule committee hearings on 60 of his nominees. Again, value judgments aside, in both instances, the Senate majority was engaging in a legitimate exercise of political power won at the ballot box. That’s the way the system is supposed to work.
What has changed in the confirmation process since President Bush’s inauguration in 2001 is the rules of the game. A partisan, ideologically driven Democratic minority first seized on the filibuster privileges of the Senate to deprive 10 of President Bush’s first-term nominations to federal appellate courts to an up or down vote. And they have carried the practice over to his second term.
The reason the President had to resort to the constitutionally permissible power of a recess appointment of John Bolton to be Ambassador to the United Nations is because minority Democrats refused to permit a floor vote on the nominee. Their cover story is that they need more information on the man from the White House. The reality is they so dislike Bolton, his politics and his style, they would do whatever it took to delay or deny him Senate confirmation.
Whether a similar stall is in the future of John Roberts remains to be seen. Though it seems unlikely at the moment, we’ll know better once the confirmation process formally is engaged early in September and the opposition of the national Democratic base fully manifests itself.
What’s at issue here is not so much the fate of these particular nominations. What’s really at issue here is whether a determined minority of the Senate should be allowed to delay interminably a vote on a Presidential nominee who has the support of a majority of the Senate. I think not. Underlying the power of the Senate to advise and consent is the principle of the Senate voting, up or down, in committee or on the floor, on presidential nominees. If the ideological tactics being applied today where in place in 1993, it is conceivable that Ruth Bader Ginsburg’s association with the American Civil Liberties Union could have been enough to deprive her a seat on the United States Supreme Court. The same might be said of Steven Breyer’s liberalism in 1994, or Antonin Scalia’s conservatism in 1986. And in the current climate, who among us really believes that Clarence Thomas would have been confirmed to the court in 1991.
It strikes me as quite a stretch for Democrats to complain that John Bolton is “damaged goods” going to the UN as he does without the affirmative vote of the United States Senate when they are the ones who blocked a vote in the first place. A Bolton vote would have been an interesting head count. If Bolton’s opponents could hold the 45 Democratic members in line, it would only take five Senate Republicans to join them to defeat the nominee. And when you consider Senate Republicans like John McCain of Arizona, Chuck Hagel of Nebraska, Lindsay Graham of South Carolina, Susan Collins and Olympia Snow of Maine, George Voinovich and Mike DeWine of Ohio, Pennsylvania’s own Arlen Specter and Rhode Island’s Lincoln Chafee…well, that’s a fertile crop of potential defectors to woo. Bolton may well have been defeated in a floor showdown, and then, he truly would have been “damaged goods,” mortally so.
In the case of Judge Roberts, let the Senate put the nominee to the deepest of scrutiny in its Judiciary Committee hearings and its floor debate. The Senators, individually and collectively, should review his back ground, study his writings, weigh if they wish, his association with the Federalist Society—even his wife Jane’s membership in Feminists for Life, though many might consider the latter avenue of exploration over the top in terms of propriety. They should put all their affirmations and objections on the record. But then, they should call the roll. We’re at where we’re at—a Republican in the White House and Republicans in control of the Senate—because the country went to the polls and voted that way. If elections are as fundamental to an orderly, free society as we say they are, then the results should count for something other than lip service when the mood fits.
Copyright (c) 2008 VPC, L.L.C.