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July 6, 2005
Democrats: We Get To Define 'Consultation'

The Democrats ratcheted up the tension over the new opening on the Supreme Court, declaring today that the gestures from the Bush administration today to key Senate Democrats do not amount to their definition of consultation. Ted Kennedy and Dick Durbin want a list of potential candidates from the White House that will allow the minority party to declare which are acceptable instead:

Democratic Whip Dick Durbin of Illinois got a call Wednesday from White House chief of staff Andrew Card, who is with Bush in Europe for the Group of Eight summit.

Card also has called Democratic Sens. Ben Nelson of Nebraska, Charles Schumer of New York and Edward Kennedy of Massachusetts, but no names of possible nominees were mentioned, according to the lawmakers' aides.

The Democrats said they want to know more specifically, whom the president is considering before Bush sends his first Supreme Court nomination to the Republican-controlled Senate for confirmation.

"To be meaningful, consultation should include who the president is really considering so we can give responsive and useful advice," Kennedy said.

Durbin said he "stressed the importance of finding a nominee in the political mainstream." In a statement, the senator said he welcomed the White House effort "to reach out in a bipartisan manner and actively consult" with lawmakers from both parties.

I recall a scene from a minor Alan Alda movie from twenty years ago, Sweet Liberty, in which Alda played a writer of American history whose book got bought by a movie studio. The studio planned major changes in the book (a non-fiction look at one Revolutionary War battle in Alda's town) in order to make it sexier and more hip to the younger generation. In fact, the director wanted to make it a comedy in which the Americans acted like Keystone Kops instead of actually winning the battle as they did in the book. When Alda protested that he had a right of consultation in his contract, the director stopped everything and asked him, "You don't think this works?"

"Absolutely not," Alda says. "It's wrong, and I won't stand for it."

"All right," the director says, nodding his head. "You've had your consultation." And the director went on to do exactly what he wanted.

Bush should learn from this exchange. The Democrats insisted on consultation, a term chosen for its reasonableness. Consultation, however, does not imply the power of approval; it only means that a discussion will take place. It doesn't even mean that the consultation will include names of nominees from the President, not even in the sense given in the Gang of 14's MOU. It only means that the Gang recommended that the President discuss his intentions with the opposition party before submitting a nomination, which could have the equally reasonable interpretation of allowing the Democrats to offer names of judges they thought might work for the President.

In fact, in light of the rules clearly outlined in the Constitution, the confirmation process begins with a nomination, after which the Senate provides advice and consent. That shows that the founders intended that the Executive should make the nominations based on his own conscience, not that of the party which the voters put out of the majority. Demanding prior approval on Bush's short list puts an unconstitutional threshold for confirmations that amounts to Senatorial extortion, and an abuse of power that if reversed would have every newspaper in America screaming about how the Bush White House wanted to impose autocracy on the US.

If this AP report is correct, then Bush has given the Democrats the consultation they requested. Just like the director in Sweet Liberty, Bush should show them that he understands the English language better than they do and, having met their literal request, he is now free to follow his own conscience. Next time, the Democrats may get a little less cute and covert about their requirements -- and in the process start behaving more openly and honestly.

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Posted by Ed Morrissey at July 6, 2005 10:08 PM

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