The Real Senate Majority Party and Judicial Confirmation

If the GOP received less votes for the Senate than the Democrats, why should they get to confirm judges ? Well, because that’s the way our government works, but the question can be pretty effective as a rejoinder to GOP democratic majoritarian arguments for confirming the filibustered nominees. I think though that it still fails even at that.

1. Not all Democratic Senators support the filibuster. It makes sense to count their vote tallies on the other side. The Democratic Senators Nelson of Florida and Nebraska voted for cloture last Congress and switching (or merely removing) their vote totals gives the majority to the anti-filibuster side (Democratic Senators Breaux and Miller also voted for cloture but have since retired) . It remains to be seen whether Senator Salazar will vote for cloture.

2. There is a reason this Democratic argument has been heard only recently even though the filibusters have been going on for quite a while. After the 2002 election, when the filibusters began, the total GOP Senate vote was greater than the total Democratic Senate vote by this measure. If this measure should determine whether these nominees should be approved, they should have already been approved.

3. The votes would probably have come out differently if total Senate votes by party were seen as significant. After all, in the more democratic House and Presidential elections, the GOP racked up a majority of votes. The Democrats racked up landslide Senate victories in New York, Illinois, and California where the GOP did not put up serious opposition. If both parties and voters had felt the Democratic margin of victory in those states important, the margin would probably have been similar to that in the Presidential race. Of course this sort of thing can operate the other way as well. It just didn’t in 2004 to the nearly the same degree.

4. Since Senate elections are staggered, those Senate elections that take place in Presidential election years would be disproportionately represented in this measure. Adjusting for this point, though, would only reduce the Democratic margin, not erase it.

cross posted at www.apt3w.blogspot.com