Aren't filibusters of any presidential appointments unconstitutional???

April 20, 2005 | Michael Katz

[Mike10542]

From what I am aware, isn't the filubustering of any presidential appointment unconstitutional? If Frist does go nuclear (or constitutioal as we like to say), shouldn't he do so for all presidential appointments? While I hate the filubuster period, the Senate has the authority under the constitution to use it on legislation. However, if you are going to argue it is unconstitutional for judges, than it also is for any appointment because you are using this clause in the constitution:

Article II, Section 2 declares that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."

So why not push to ban a filibuster on all presidential appointees Senator Frist?

[Mike10542]

I should have said presidential "nominees."

[Jim Noble]

The Senate has the sole power to make its rules: Art I, s. 5, second clause.

The extended debate rule (Senate rule XXII) is legal and constitutional.

There is NO CHANCE that the "consent of the Senate" will ever be deemed to be anything other that what Senate rules say it is.

[Congressman Billybob]

Your point is correct. Under the Advise and Consent Clause of the Constitution, all presidential appointments are affirmed by a simple majority, not just judicial ones. However, keep in mind the saying that "Politics is the art of the possible."

It is quite possible that enough Senators will vote to end the filibuster for judicial appointments right now. The groundswell is not there to end the filibuster for all appointments, right now.

Congressman Billybob

Latest column, "A Triple Black Dog Double Dare to Infinity."

[Mike10542]

Yeah, constitutional for legislation, but not constitutional for presidential nominees. How can you argue filibusters are constitutional for nominees with the passage from the constitution I just posted.

[Congressman Billybob]

Your conclusion is dead wrong. The filibuster has been ruled constitutional for LEGISLATION only. It has never been tested regarding judicial nominees. The Constitution is, as it says, "the supreme Law." Therefore if a Senate Rule contradicts a constitutional provision, the Rule loses and the constitution wins.

And it has long since been ruled that where the Constitution calls for a decision and does not specify a supra-majority, the usual rule applies, that it requires only a simple majority.

John / Billybob

[Mike10542]

Neither has it been tested for any nominees (we can't forget about that, especially with the Bolton issue still looming).

[Jim Noble]

And it has long since been ruled that where the Constitution calls for a decision and does not specify a supra-majority, the usual rule applies, that it requires only a simple majority.

John, I yield to no one in my respect for your constititutional knowledge, but I think you are wrong, for two reasons.

Reason one: The current number of votes needed for the Senate to consent to a nomination is 51. The rule of the majority which you seem to think exists in penumbras and emanations of the treaty clause is in effect.

Reason two: Article I, s.5 constitutionalizes ANY rule the Senate makes about its internal proceedings. If you think Rule XXII has ever been ruled on by a court, I would love the cite. I think its a nonjusticeable question, and I would be very surprised if any Federal court would entertain a challenge.

[supercat]

Reason two: Article I, s.5 constitutionalizes ANY rule the Senate makes about its internal proceedings. If you think Rule XXII has ever been ruled on by a court, I would love the cite. I think its a nonjusticeable question, and I would be very surprised if any Federal court would entertain a challenge.

The argument I would make is that because Congress is under no obligation to pass or even consider legilsation, rules which prevent such action from being taken in a timely manner are fine. On the other hand, the 'advise and consent' role of the Senate is explicitly mandated. Any rule which by design prevents such role from being fulfilled in a timely manner must therefore be, at best, suspect.

[Servant of the 9]

Before you start hating the filibuster, remember that without the threat of filibuster, the democrats would have converted this to the Peoples Republik of Amerika during the 60s and 70s.

SO9

[Congressman Billybob]

Neither I nor anyone else including the Supreme Court has dealt in any "penumbras" of the Advise and Consent Clause, which indludes the 2/3rds requirement for treaty ratification only. You might want to look at the SC case of (Senator) Goldwater v. (President) Carter and concerned the abrogation of the Panama Canal treaties.

That case hinged in part on the difference between a 2/3rds vote for treaties and a simple majority for other Senate decisions.

To prove the point that a Senate Rule cannot trump the Constitution itself, consider this: Senate Rule says, "No votes by women who happen to be Senators will be counted toward passing any legislation." Do you have the slightest doubt in such an instance that the Constitution governs, and the Rule would fall?

John / Billybob

[tet68]

the democrats would have converted this to the Peoples Republik of Amerika during the 60s and 70s.

I thought they already had.

[Congressman Billybob]

You are behind the curve on this. No one has ever suggested ending the filibuster for all purposes, including legislation. Senator Frist has made this point so clearly and so often that even the MSM has reported in the last few days that nothing he is proposing would end the filibuster for anything except judicial nominees.

John

[Servant of the 9]

You are behind the curve on this. No one has ever suggested ending the filibuster for all purposes, including legislation. Senator Frist has made this point so clearly and so often that even the MSM has reported in the last few days that nothing he is proposing would end the filibuster for anything except judicial nominees.

I realize that, and agree with the idea.
I was commenting on the statement by 'Mike10542' that he hated all filibusters.

So9

[Jim Noble]

To prove the point that a Senate Rule cannot trump the Constitution itself, consider this: Senate Rule says, "No votes by women who happen to be Senators will be counted toward passing any legislation."

The Senate could refuse to seat females, being the sole judge of the qualifications of its members.

However, they would all be replaced at the next election.

The People are the check on the rules of the Senate.

[Mike10542]

I hate filbusters, but just because I hate them doesn't mean I would get rid of them. I would always keep them on legislation because I know we need it sometimes. They are annoying though when they are used against us.

[Fenris6]

The Senate has a duty to advise and consent. If they abdicate that Constitutional responsibility with filibuster, then the Executive Branch should be free to appoint nominees without the Senate's input.

[ScorpiusInvincitatus]

"Penumbras and emanations" you can attribute to William O. Douglas of the Supreme Court. Constitutional? Not by a long shot. "Legal psycho-babble"? Yep. Typical liberal b.s., but I'm sure you were already aware of that.

Scorp

[ARCADIA]

The groundswell is not there to end the filibuster for all appointments, right now.

It takes leadership to create a groundswell; where is ours?