THE SAPIENT SPARROW: conservatism for commoners

"What has always made the State a hell on earth has been precisely that man has tried to make it his heaven."–Holderlin


There has been much discussion, especially following the “Healthcare Summit”, about using “reconciliation” to pass Obamacare in the Senate.  The justifications for using the measure, even over the objections of its author, Senator Robert Byrd, (D-WV), are variations on the theme, “We won.  You lost.”  Reconciliation is “fair”; it is “majority rule”.  Besides, the GOP used it more times than the Democrats ever did.

It is informative to read about how “reconciliation” has actually been used in the Senate since its inception.  “Reconciliation” was designed for budgetary items, i.e., spending measures, taxation issues and extraneous items.  Historically, “reconciliation” has been used for relatively small details within a bill.  In fact, when the GOP, during the presidency of George W. Bush, considered using “reconciliation” to confirm judges to Federal benches, thereby circumventing the filibuster which takes a two-thirds majority to overcome, Democrats howled about how ruinous such a move would be.  The GOP demurred in the face of Democrat criticism, and as a result, many judges failed to be confirmed, leaving a paucity of judges within the Federal system under President Bush.  Interestingly enough, as is noted below, only a simple majority is required to confirm a judicial nominee under the “advice and consent” article of the Constitution.  (My emphasis in bold italics).

The Process
Nominations of Supreme Court justices and courts of appeal judges are now driven by staff working in the White House.  (Nominations of federal district judges, on the other hand, are more likely to start with a member of Congress serving the district where the vacancy occurred, especially if the congressperson belongs to the President’s party.)  There are no objective criteria for whom a President might nominate; nothing in the Constitution even requires that a nominee have any legal training.   The staff evaluates a candidate based on prior opinions (if the nominee has judicial experience), writings and speeches, and background to determine ideological compatibility with the President’s goals, as well as the likelihood that the candidate could be confirmed by the Senate.

Judicial nominations are forwarded to the Senate Judiciary Committee, which conducts its own review (using its staff and those of its members) of the merits of the nominee.  Hearings are held in which the nominee, as well as other persons knowledgeable about the nominee’s qualifications, offer statements and answer questions posed by Committee members.  After the hearing, the Judiciary Committee votes on whether to recommend confirmation of the nominee by the full Senate.  A nominee who fails to win a majority of Committee votes usually sees his prospects die, unless the Committee chooses to forward the nomination to the full Senate without recommendation. The full Senate, once a nomination is sent to it, will debate the merits of the nominee and schedule a final vote on confirmation.  On rare occasions, as happened when charges of sexual harrassment surfaced at the last minute against Clarence Thomas, a nomination might be sent back to the Judiciary Committee for further hearings. A simple majority is required for confirmation. The average time in recent decades between a presidential nomination of a Supreme Court justice and a final vote by the Senate has been a bit over two months.

It remains to be seen whether the Senate will employ “reconciliation” in order to pass Obamacare, or whether it will risk the House approving the bill already passed in the Senate.  If the Senate does eventually use “reconciliation” to pass a bill that will impact around 1/6th of the U.S. economy, it is unimaginable that any justification they offer will satisfy an, understandably, furious electorate.


Filed under: congress, LEGISLATION, , , , , ,

2 Responses

  1. lhurley13 says:

    Hear! Hear! I like it. I like it. Will never happen, but I like it! Thanks for the comment.

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