In this issue
April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review Oct. 20, 2005 / 17 Tishrei, 5766

Time for a Senate GOP confirmation philosophy

By David Limbaugh

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http://www.JewishWorldReview.com | Conservatives have been inquiring about Harriet Miers' judicial philosophy; perhaps they also ought to be focusing on the Senate's confirmation philosophy.

I have been arguing in this space that critics of the Miers' nomination should make clear the applicability of their criticism. That is, it is one thing for them to criticize President Bush on the appointment (I have myself), even to the point of urging him to withdraw it if they choose. But if their advocacy fails, they better think twice before they lobby the Senate to reject her nomination.

I have contended that the Constitution's Advice and Consent clause gives the Senate coequal power over judicial and other appointments. Some people I respect have taken issue with my assertion that these nominations are a matter of the president's prerogative and that the Senate must confirm unless the nominee is unqualified or of unfit character.

UCLA law professor Stephen Bainbridge notes that "In government, prerogative powers refer to those powers vested solely in the executive," like the pardon power, recess appointments and a few others.

Fair enough. The term "prerogative" may well be an overstatement. I didn't mean to suggest that the Senate was to be merely a rubber stamp, as I clearly stated the Senate's role was to assure the nominee had the requisite qualifications and character.

But Professor Bainbridge's disagreement with me goes beyond semantics. He rejects my contention that the Senate's role should be limited to vetting the nominee's qualifications and character. He cites a few constitutional scholars, like John McGinnis, who have argued that the Constitution empowers the Senate to confirm or reject nominees for any reason at all. "Nothing in the text of the clause appears to limit the kind of considerations the Senate can take up."

Bainbridge writes, "To be sure, as McGinnis notes, Alexander Hamilton thought the Senate could only reject a nominee for 'special and strong reasons,' but that qualification is nowhere in the Constitution."

But doesn't an "originalist" approach to constitutional interpretation oblige us to inquire what the Framers understood the meaning of "Advice and Consent" to be? Surely Hamilton's Federalist 76 cannot be dismissed so casually if it gives us some insight as to the Framers' original understanding. Hamilton wrote: "To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration." That section and others in the piece tend to support my conclusion — and that of Mr. McGinnis — that Hamilton, at least, thought the Senate could only reject nominees for "special and strong reasons." Hamilton definitely was concerned about so-called "cronyism," but I think precisely because he believed cronyism, absent a check in the Senate, might lead to the appointment of an unqualified or unsavory character.

Professor Bainbridge also said that "in effect," I urged that Miers' critics "ought to shut up because said nomination was a matter of 'presidential prerogative.'" Just for the record, I most emphatically did not urge Miers' critics to shut up. Again, I merely cautioned that they consider the difference in criticizing the president's nomination and actually advocating that the Senate reject her.

If conservatives do press the Senate to reject her, they better be sure to do so on grounds consistent with those they've urged rejection of judicial nominees in the past, and with those they would like to see urged in the future. Aside from whether my relatively narrow view of "Advice and Consent" is correct, I believe I can safely say that in practice, conservatives have certainly given this view de facto credence.

If Republicans thought they could properly reject the president's judicial nominees for political reasons alone, or on the basis of judicial philosophy, they've certainly done their best to prove otherwise. How else do you explain their overwhelming affirmation of the radically liberal and activist Ruth Bader Ginsburg?

By contrast, Democrats, since Judge Bork's nomination, have often — though not always — rejected qualified nominees purely for reasons of politics and judicial philosophy.

If Republicans continue to construe "Advice and Consent" more narrowly than Democrats, they'll continue to lose because Republicans will confirm otherwise qualified, but liberal activist nominees and Democrats will reject qualified constitutionalists.

Indeed, if the Bainbridge/McGinnis formulation is correct — and it may be — shouldn't someone make sure to get the memo to Senate Republicans? Isn't it time they developed a coherent "confirmation philosophy"? Otherwise they'll be guaranteeing themselves a disadvantage in perpetuity on a matter — judicial confirmation — that ranks among the most important to the future of our republic.

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of, most recently, "Persecution: How Liberals Are Waging War Against Christianity". (Click HERE to purchase. Sales help fund JWR.) Comment by clicking here.


© 2005, Creators Syndicate