WSJ editorial misstated Senate rules concerning "advice and consent" for judicial nominees


A March 30 Wall Street Journal editorial (subscription required) misapplied a statement by Sen. Robert Byrd (D-WV) about the Senate's treatment of President Bush's judicial nominations to suggest that "Under Byrd's Constitutional analysis," a simple majority of senators "can simply send the President a letter expressing their support for his candidates" to fulfill the Constitution's requirement that the Senate provide "advice and consent" to the president on nominations.

The Journal editorial, titled "The Byrd Option -- II," quoted Byrd's comment from the March 10 edition of Fox News' Hannity & Colmes: "The Constitution doesn't say that that [judicial] nominee shall have any vote at all. There doesn't have to even be a vote." But this statement was simply an acknowledgment that because Article I of the Constitution specifies that each house of Congress "may determine the Rules of its Proceedings" and because Article II of the Constitution does not specify the manner in which the Senate must provide its "advice and consent," the Senate could in theory decide to provide advice and consent without a vote.

But in order to do that, the Senate would have to formally change its rules. Rule XXII of the Standing Rules of the Senate, which governs debate and filibusters, explicitly states that the rules apply to "any measure, motion, [or] other matter pending before the Senate," including judicial nominations, so enacting the new advice and consent procedure that the Journal advocates would require changing this rule. But that rule change could itself be filibustered. Indeed, the power of the minority to filibuster a rule change is precisely why the Senate Republican leadership is currently considering a resort to the so-called "nuclear option" in order to change Senate rules to prevent Democrats from filibustering a handful of Bush's nominees. In using the nuclear option, Republicans would attempt to avoid a filibuster over the rule change by changing Senate procedure in a manner that would circumvent the established procedure for rule changes laid out in the rules themselves.

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