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Violating the Oath – Voting For Cloture

From the diaries by Erick

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same …

In voting for cloture (see roll call vote here) on the nomination of Jack McConnell on Wednesday, 11 Republican Senators violated the oath they took to defend the constitution.  It’s that simple.

Senators Alexander, Brown of Massachusetts, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe and Thune provided Democrats with the necessary votes to overcome a filibuster of McConnell to be a district court judge in Rhode Island.

How bad is Jack McConnell?  One only needs to look to the scathing Dear Colleague letter circulated by Senator Cornyn prior to the Senate conducting a cloture vote.  After pointing out that McConnell had been dishonest in his testimony to the Judiciary Committee, Senator Cornyn stated in part:

[Mr. McConnell's] 25-year legal career is surrounded by ethical cloud. As a crusading plaintiff’s lawyer, “Mr. McConnell and his firm helped pioneer the practice of soliciting public officials to bring lawsuits in which the private lawyers are paid a percentage of any judgment or settlement.” Specifically, Mr. McConnell has helped initiate and direct the litigation of mass tort suits brought by state attorneys general against tobacco and lead -based paint manufacturers. I have long argued that these types of outsourced contingent-fee arrangements are inherently unethical and inevitably lead to the appearance of public corruption. In Texas, for instance, my predecessor as Attorney General served over three years in federal prison for his role in manipulating documents related to a contingent-fee contract and attempting to channel settlement funds to a close friend. While in the private sector contingency fee agreements, though not without controversy, can provide a poor person a key to the courthouse they could not otherwise afford, they have special problems in the public sector. In the public sectors it would be analogous to outsourcing traffic tickets to a private security firm paid by a percentage of the income – no checks, no balances, no exercise of prosecutorial discretion, just a pure profit motive.

He’s that bad.

The 11 Republican Senators tried to be too cute for a half.  They voted in favor of cloture, but then voted “against” confirming Mr. McConnell.  The problem here is that anyone, who can count to 60, knows that cloture is the only vote that matters.  A nominee can be confirmed by a simple majority vote and the Democrats have more than a simple majority.

Now some will say, as Senator Alexander did on the Senate floor, you cannot start filibustering district court nominees.  I could not disagree more.  The oath Senators take require them to filibuster district court nominees, when those nominees will not adhere to the rule of law and submit themselves to the constitution.

The oath Senators take is to defend the constitution, not to allow the constitution to be assaulted.  How many members, understanding that a criminal is coming into their homes, would leave their doors unlocked?  Not one.  That’s what you do when you vote for cloture, understanding that a nominee is going to be confirmed.  You invite the scoundrel in, understanding that he is about to assault the constitution, you’ve taken an oath to defend.  The only way to defend the constitution is to lock to door.  Voting no on cloture locks the door.

There is absolutely no way to defend voting for cloture but against the nominee.  When you vote against the nominee, you’re saying he’s not qualified.  If he is not qualified, why give him a chance to be confirmed?  The American people did not elect you to defend the constitutional partially, allowing the criminal in the house, hoping to shoot him when you catch him in the middle of the act.  You were elected to defend the constitution fully.  Voting yes for cloture, but then voting against the nominee is not only too cute for a half, it is a violation of the oath.  It’s that simple.

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