SALT LAKE CITY, Dec. 15 (UPI) -- Few have noticed but a serious constitutional question lies before the republic. That question is: who controls nominations to the Executive Branch of the United States. Sooner or later, it has to be decided.
Section 2 of Article III of the Constitution assigns to the president the power to "appoint...officers of the United States...." That power is to be exercised "by and with the advice and consent of the Senate." Appointments have always been contentious, but the settled practice, until very recently, was that, in the absence of manifest character defects, a president was entitled to appoint anyone he wanted to executive branch positions, and even to the judicial branch. The idea that ideology was a relevant consideration was far-fetched, and simply never suggested (though we should not deny that it often played a role sub rosa).
Today all is changed. Senate Democrats proclaim openly that they will not confirm judges whose philosophy they consider "out of the mainstream." The result is a mounting backlog of unconfirmed judicial nominations that is beginning to affect the work of the district courts and courts of appeal.
But it is not only judges, whose appointments are, after all, for life, and consequently perhaps worth more extended consideration. The prime example is Eugene Scalia, nominated more than six months ago to be solicitor of the Department of Labor. Scalia cannot get a vote on the floor of the Senate.
Majority Leader Tom Daschle of South Dakota will not schedule a vote, and the majority leader pretty much has absolute power in matters of Senate scheduling.
It is widely believed by Republicans that the tough Democratic stand on this issue is retaliation for the Supreme Court decision in Bush v. Gore.
That ruling overturned the Florida Supreme Court's order in the ballot counting and re-counting after the 2000 presidential election.
That decision made ended the legal challenge to the election, is essence securing the presidency for George W. Bush thanks to the wafer thin margin of victory he held in Florida's state presidential voting.
Gene Scalia's father is Supreme Court Associate Justice Antonin Scalia, who played a crucial role in that controversial decision.
Extreme Democratic partisans (which Tom Daschle certainly is) believe that Justice Scalia and four of his colleagues "stole" the election for President Bush, who is now "paying off" the father by nominating the son.
Consequently, Daschle and other describe Gene Scalia as unqualified for hte post, or worse.
Daschle's number one outrider in this political lynch mod is Sen. Ted Kennedy, D-Mass., who said, "(Gene Scalia's) views are outside the mainstream on many issues of vital importance to the nation's workers and their families."
There are three answers to the point raised by Sen. Kennedy, whose life of privilege is reason for some to question the true depth of his understanding of the needs of working Americans.
The first is factual. Mr. Scalia's qualifications should have been examined by the Senate Committee headed by Sen. Kennedy. That committee should have called him as a witness, and called others who have knowledge of his qualifications to be the top lawyer for the Labor Department.
What's that? The Health, Education, Labor and Pensions Committee did hold hearings on the nomination? Months ago? And they did what? Voted the nomination out of committee, sent it to the floor with a positive recommendation? You mean they did not find Mr. Scalia's views "outside the mainstream"?
Apparently not. Question: Where was Sen. Kennedy when all this was going on? No, not out with George. He was chairing the Committee.
The second answer is a philosophical one, so Sen. Kennedy will have to pay closer attention than he apparently did to the work of his own committee.
We will never know if Mr. Scalia's views meet with the approval of the American people. We have no way of knowing. We cannot put his nomination to a vote of the people (if we could, I doubt seriously that Sen. Kennedy would prevail).
What we can and should do is put it to a vote of the people's representatives charged with this responsibility, the Senate of the United States. Once a nomination for a domestic post has been sent to the floor, it is unheard of to deny it a vote.
Majority Leader Daschle says "I don't think the votes are there at this point, and so I don't know that it merits a lengthy debate." So let's skip the debate (a charade in any case, never changing a single vote) and find out if the votes are there. The whole process shouldn't take longer than half an hour.
Surely the Senate can find time to allow a vote before they depart on holiday without adjourning. Then we could see if the votes are there. As The World Book salesmen used to say, "we never guess; we look it up." Well, we don't have to wonder; the Senate can vote.
I go into this example in some detail to illustrate the point that we are on the point of allowing Tom Daschle to re-write the Constitution of the United States.
If the president can't even get a vote on a nomination like Mr. Scalia's, he has lost the constitutional prerogative assigned him to have about him the ministers and other officers of his choosing. Henceforth nominations will have to meet the specifications of the majority party of the Senate. That is not the system bequeathed us by the Founding Fathers.
Now is the time to fight, and this nomination is as good a test case as is likely to come along. President George W. Bush should interrupt whatever else he is doing, including prosecuting a war on terrorism, and use whatever devices he can come up with to turn this process around. If he does not, he will not have the personnel he needs to prosecute this war or do anything else he might have on his mind.
Some years ago I edited a book called The Imperial Congress. If the president allows the Democratic majority in the Senate to win this battle, "imperial" won't begin to describe it.
The battle is underway, whether the president knows it or not. Sooner or later, he has to engage his opponents, and if the Republic is to survive, win the battle. If not now, when?
* Gordon S. Jones is president of the Association of Concerned Taxpayers, a national grass-roots lobbying organization seeking flatter, fairer taxes. The views expressed here are his own and do not necessarily reflect those of the Association.
