Why not require 60 votes for Supreme Court Nominations?
/- Originally published in The Hill March 16, 2005 Copyright 2005 Capitol Hill Publishing Corp.
By Mark S. Mellman
It should take 60 votes to put someone on the Supreme Court for life. We should be aggressive and affirmative in making that demand and not shrink from it.
Most Americans agree. In a recent poll we conducted, 69 percent said, "A nominee should have to get the support of at least 60 of the 100 senators." Just 29 percent believe, "When the president nominates a justice to the Supreme Court it should take the votes of only 51 of the 100 senators to confirm the nominee and make them a Supreme Court justice."
In short, a supermajority of the electorate backs a supermajority to confirm a Supreme Court nomination.
It's a view shared by Democrats and Republicans, liberals and conservatives.
Supermajorities are appealing because Americans believe in government by consensus. If a nominee can't muster 60 votes in the Senate, there is not a sufficient consensus to put that person on the Court for life. If the president does not believe a candidate can meet the 60-vote threshold, he should not submit the nomination. If the president finds out during the course of hearings and debate that a candidate will not garner 60 votes, he should withdraw the nomination.
Most nominees who make it to the Supreme Court actually do achieve that level of consensus. Of the 148 people nominated to the court in the history of the republic, only four have been confirmed with the support of less than 60 percent of the Senate. Three of them hardly became household names for their brilliance on the bench - the pro-slavery Democrat Nathan Clifford; Lucius Lamar, the author of Mississippi's ordinance of secession, whose tenure on the court has been called "largely inconsequential"; and Stanley Matthews, who did write two important opinions. These aren't the folks you study about.
Only one successful nominee in this century failed to meet the 60-vote threshold. It's a name you do know - Clarence Thomas, widely regarded as one of the least distinguished jurists to grace the bench.
Make no mistake; conservative ideologues can make the cut. Warren Burger garnered 74 votes, and Rehnquist 68.
In recent years, Republicans have widely embraced supermajorities. Orrin Hatch himself proudly proclaimed his sponsorship of a bill to require 60 votes to raise taxes, as did Bill Frist.
In arguing for such legislation, they and other conservatives pointed to 14 states where Republicans have engineered supermajority requirements on fiscal issues. They noted that the Constitution requires supermajorities in 10 instances and only invokes simple majorities twice - for a quorum and in the Electoral College.
Indeed the Senate Republican Policy Committee argued in 1997, "The Framers put super-majority votes within the four walls of the Constitution, and throughout the years Congress has regularly and unremarkably operated under those super-majority requirements. ... Super-majority votes are reserved for matters of special importance ... but they are not rarities either. ... Spending our children's inheritance is a matter of special significance that should require an occasional super-majority vote."
Surely a lifetime appointment to a nine-member court charged with interpreting the Constitution is at least as important as a tax increase or expelling a member of Congress.
Their current rhetoric notwithstanding, Republicans have no principled attachment to simple-majority rule. Hatch and Frist, like most of their colleagues, support whichever rule helps them achieve their political ends.
They, along with Bush, would do well to consider the wisdom of the American people who crave consensus. If you can't get 60 votes, don't offer up the nominee. Bring us together; don't work to tear us apart. Follow the Constitution. Seek the advice of the Senate, not just its consent.
Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982, including Sen. John Kerry (D-Mass.) last year.
