Dayton v. Kennedy

Returning Senator Mark Dayton to the Ranks of the Idle Rich in 2006

12/15/2004

The Constitutional Option

First-term U.S. Senator -- and former Texas Attorney General -- John Cornyn is quickly emerging as one of the chief lieutenants of Majority Leader Frist on all things judicial. In this scholarly but eminently readable paper for the Harvard Journal of Law & Public Policy, Cornyn makes the case for a reform of the filibuster as it relates to the judicial confirmation process.

Cornyn writes, "the filibuster of judicial nominations have never been a part of Senate tradition before... Simply put, filibusters are the most virulent form of unnecessary delay one can imagine in the Senate's exercise of the judicial confirmation power... I firmly believe that, once a majority of Senators has determined that it has conducted an adequately thorough investigation into a nominee's qualifications and fitness for judicial service, that majority should possess the power and authority to act and to confirm judicial nominees it finds acceptable, without further delay."

Radical stuff, that.

Drawing on the Federalist Papers and 200 years of Senate tradition, Cornyn methodically makes the case for dramatic reform of the confirmation process for any president's judicial nominees. Cornyn continues, "If the Constitution provides that only a majority is necessary to confirm judges, any Senate rule that purports to prevent a majority of the Senate from exercising that confirmation function directly contradicts and offends our constitutional design. After all, no Senate rule can trump the Constitution."

Opponents and proponents of the plan to change Senate rules on the use of the filibuster have mistakingly called it "the nuclear option". Senator Cornyn shows us this proposed parliamentary change should correctly be called "the constitutional option".

Count on Senator Dayton's votes in favor of sustaining judicial filibusters to be a huge issue in November 2006.

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