The Nuclear Option - A Radical Reform?

David E. Kyvig, a "distinguished research professor" at Northern Illinois University, wrote this piece that appeared in Sunday's Birmingham News. In it, he repeats the Democratic talking point that ending the right to filibuster judicial nominations would be a "radical reform" that is inconsistent with the Framers' vision of democracy.

Senate Republicans, lusting to install a few judges who can only be confirmed by slender majorities, are ignoring a principle in which James Madison and his contemporaries deeply believed. Senate Republican leader Bill Frist is advocating a different approach to representative democracy from the one the Framers embraced.

The men who gathered in Philadelphia in 1787 thought that the more enduring the result of a democratic choice, the greater the need for widespread consensus to give it legitimacy. For more than 200 years, the United States has applied that wisdom to lifetime judicial appointments as well as other decisions with lasting impact.

Now Frist, aided by Vice President Dick Cheney and other Republicans, seeks to change Senate rules on judicial nominations. Their proposed reform, as the Framers would have immediately understood, would institute a form of democracy far less prudent than what the nation has long enjoyed.

He goes on to point out three areas in which the Constitution requires supermajorities for government action - 1) treaties, 2) removing officials from office, and 3) constitutional amendments. He states that, like those three things, "a judicial appointment may affect laws for decades to come." Thus, he makes the logical leap that confirmation of judicial nominees should also be subject to a supermajority, saying: "It is consistent with the American constitutional tradition to require more than a simple majority for a congressional decision to grant lifetime tenure to a judge."

Kyvig conveniently ignores the fact that the Framers failed to include such a requirement in the Constitution. Had they intended that the Senate's "consent" to nominations by the President was to be by supermajority, they undoubtedly would have written it down. They didn't.

If Kyvig and Senate Democrats believe that a higher threshold should be imposed for judicial appointments, then the Constitution provides them with a way to do it - it's called a constitutional amendment, and they can find instructions on how to pass one in Article V.