Brown is literally pledging that he will toss away the constitutional duty of “advice and consent” under Article II, Section 2 of the U.S. Constitution and vote blindly against anyone nominated by President Trump because he does not like him.
Brown told MS NOW that “we’re not, obviously, confirming judges that are Trump judges.” Unfortunately, it is common for senators of the opposing party to vote against a President’s nominees. However, they at least preserve the pretense of “advice and consent.” Brown is trying to win the race to the bottom by saying that Trump could nominate Louis Brandeis and he would still vote against him because he is a Trump judicial nominee.
Brown seems to be channeling Jaime West, who admitted that she does “not even talk to them” and hates Republicans.
It is a curious pledge in a state that voted for Trump three times and is Republican.
What is most concerning is that this pledge is made as leading Democrats are lining up in favor of packing the Court. The combination would ravage our court system through packing and attrition. Brown would simply not confirm any new judges as a way off reducing Republican judges on the bench.
Brown and his colleagues are given absolute discretion in casting their votes on judicial nominees, including doing so on a strictly partisan basis. They also have the right not to vote on a nominee, as was the case of the nomination of Merrick Garland. While I also criticized the failure to vote on Garland, it was within the authority of the Senate to forego such a vote.
There was a time when the Senate was called the “world’s greatest deliberative body.” The phrase attributed to former President James Buchanan in 1867 is often repeated today like a mantra by senators who have dispensed with serious deliberations in favor of endless demonstrations. Now, Brown is actually running on a “no deliberation” pledge.
I am old enough to remember when senators routinely voted for judges from the other party and different ideology as a matter of political integrity. For many decades, senators insisted that they were bound to vote for a nominee if they were qualified even if they disagreed with their liberal or conservative jurisprudential views.
With Brown, even the pretense of deliberation is over. He is pledging not to consider the merits of nominees in fulfilling his oath to give “advice and consent” on nominations. Joining Jaime West, he is announcing that he just does not like them and so he will not speak with them.
The senators now seem to be offering pure undiluted rage to voters. In Rage and the Republic, I discuss how the Framers designed our Constitution to prevent a democracy from becoming what Benjamin Rush called a mobocracy. It is now becoming the captive of the very blind passions that it was designed to resist.
The Brown pledge is a chilling moment for this once august institution. It was designed to be a bulwark against the mob, an institution that would temper passions, not yield to them. Indeed, in his final farewell to the Senate in 1805, Aaron Burr remarked that “if the Constitution be destined ever to perish by the sacrilegious hand of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.”
Jonathan Turley, is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”