Skip to comments.Appointing Justices to the Supreme Court
Posted on 12/03/2004 12:50:28 PM PST by Congressman Billybob
Its sad that political parties and the MSM who are reporting on them tend to have a firehouse focus. They usually pay no attention to problems that are serious and looming. Not until flames go through the roof and smoke fills the sky do they ring the bells and roll the men and equipment. A classic example of this bad habit is the belated coverage of how new Justices of the US Supreme Court are appointed.
This issue has been obvious for at least three years. It got little serious attention, beyond the narrow group of us constitutional junkies, until it became clear recently that Chief Justice Rehnquists cancer is not mild nor easily treated. Now that it seems likely that the Chief Justice may have to resign within the next year, coverage of the process has begun. (There will probably be two other resignations next year, but these are still below the radar.)
That brings us to a long and supposedly comprehensive article on this subject, produced by Jim Abrams for the Associated Press on Friday, December 3rd, with the title, Filibusters an Old Senate Tradition That Republicans Want Changed.
From the title to its final paragraph, this article demonstrates that the writer and his editor were either seriously ignorant of the subject they were seeking to cover, or were deliberately dishonest in covering that story. Harsh criticism. Allow me to prove the point.
Yes, there is a long tradition of unlimited debate in the US Senate. Interestingly, there was a similar tradition in the House, back when it had about the same number of members. And Representatives used their time to read word for word the complaint letters they received from constituents. Imagine what House sessions would be like today if Members of Congress still read those letters in public. But I digress.
The AP article does say that Republicans in the Senate have claimed that the use of filibusters against judicial appointments violates the Constitution. However, the fatal error in the article is its failure to recognize and describe a tradition every bit as ancient and honorable as the filibuster.
The First Congress passed the Judiciary Act of 1789, which set the number of Justices of the Supreme Court and created the lower federal courts. In doing this, Congress was exercising the power given to it by Article III, Section 2, clause 1. Then, President Washington nominated the individuals to hold the judicial offices just established by law. The first Chief Justice of the United States (which is the correct title) was John Jay. (He was a Jeopardy! question just this week.)
How were all those new judges and Justices confirmed? All of them were nominated by the President and confirmed by a majority vote of the Senate. Article II, Section 2, clause 2, provides for presidential nominations subject to the Advise and Consent power of the Senate to confirm all such nominations.
The First Congress, and every Congress since then to the present day, has recognized that Advise and Consent requires only a majority vote in the Senate, and no more. The reason is that the Constitution specifies supra-majorities wherever the Framers thought that necessary. Examples include the supra-majorities to pass a constitutional amendment, ratify a treaty, or to override a presidential veto. Wherever the Constitution requires a decision by either House of Congress, it is a majority decision unless otherwise specified.
The filibuster, which requires a supra-majority to close off debate in the Senate, is NOT a part of the Constitution. That document does provide that each House may determine [its own] rules. But the Constitution does not say that the Senate can, in its established rules, alter the meaning of the text of the Constitution. And that is exactly what the Democrats claimed in the last four years, by applying the filibuster to judicial nominees.
More than two years ago, I wrote about the nuclear option, using a ruling from the President of the Senate upheld by a simple majority of the Senators present, to end forever the application of the filibuster to judicial nominees. I believe the Senate noses have been counted, and that Majority Leader Bill Frist will use that option shortly after the new Senate is sworn in, in January.
A two-century tradition will be maintained by that decision. But you couldnt tell that by reading the AP article, or any other MSM articles that are equally deficient in covering all aspects of this story.
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About the Author: John Armor is a First Amendment attorney and author who lives in the Blue Ridge Mountains of North Carolina. CongressmanBillybob@earthlink.net
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If the President has reason to believe either that there aren't the votes for the nucular [sic] option or that Frist could break the filibuster, then he needs to appoint someone the Senate wouldn't dare filibuster, much like FDR knew the Senate couldn't reject Senator Hugo "KKK" Black. I think GWB needs to make a Black-like appointment anyway -- someone who will work to change the Court (for the better, this time).