Quit fiddling while Rome burns.
Get the conservative judges approved NOW!
This alone will save our judicial system.
(Otherwise, after the Supremes basing their rulings
on foreign opinions, and the Terri tyranny, the people's
disgust with our judges will have about reached its limit.)
I am beginning to believe that no matter how large of a majority we give Senate Republicans, they will still be afraid of Ted and Hitllery and the rest.
Good article. Thanks for posting it.
Grow a pair. Do it soon!
Bush needs to get on TV and talk about activist judges, no wonder the Senate is backing down, he is allowing the RATS to take control of the issue just like he is waffling to Pedro Gonzalez Vincente Fox.
The “Advice” in Advice and Consent
Must the president consult with the Senate on Nominations?
The simmering controversy over Democratic filibusters of President George W. Bush's nominees to the federal appellate courts continues to push the constitutional envelope. Even among conservatives themselves, there is profound disagreement about whether the filibusters violate separation-of-powers principles. Leaving that weighty issue aside (for today, anyway), now a new question arises: What is meant by the advice part of "advice and consent"?
The impetus for asking is clear enough. The Senate appears to be careening toward High Noon at the OK Corral — a decisive, bloody battle over the filibusters. Parliamentary maneuvering by Democrats has blocked full-Senate consideration of about a quarter of President Bush's nominees to the federal appellate courts. Republicans, frustrated over this tactic, which is both unprecedented (at least as it has been systematically used here) and unapologetically ideological (i.e., not based on claims about competence or character), are seriously mulling a rule change that would end the filibusters and ensure the nominees an up-or-down vote.
The stakes have now been raised. President Bush, equally vexed over his inability, for four years, to move eminently qualified lawyers into open seats on important courts with pressing caseloads, has re-nominated most of the candidates heretofore blocked. For their part, Democrats, for whom the judicial power assumes ever-mounting significance as their fortunes at the ballot box wane, are under enormous pressure from their special interests not to back down.
If Republicans change the rule (and, mind you, it is no sure thing that they have the votes necessary to do so), Democrats promise to shut down all other business in retaliation. All the relevant players know this would be fraught with ruinous potential. In the aftermath, the public could decide to punish either camp in the 2006 midterm elections. Although a mid-90s shutdown proved disastrous for Republicans, that was because they confronted not only a hostile mainstream press but a skillful Democrat in the bully pulpit. Today, on the other hand, the mainstream is shrinking, the media are no longer nearly as monolithically left-leaning, and the dominant figure is a Republican president who just garnered more votes than any candidate in U.S. history. Still, whether Republicans or Democrats felt the sting in the future, the pain for President Bush would be in the here and now. A shutdown would grind his ambitious second-term agenda to a halt during the precious months he has before lame-duck syndrome takes hold.
Given the daunting mutual risks, it is unsurprising to find officials at the center of the impasse groping to avoid a showdown. Senior members of the Senate Judiciary Committee, including Republican Chairman Arlen Specter and Democrat Chuck Schumer, have suggested that one way out would be to pay more attention to (or, as critics might counter, to reinterpret) the constitutional provision calling on the president to obtain the Senate's advice in connection with judicial appointments.
Senator Specter maintains that "[t]he advice clause in the Constitution has been largely ignored[,]" and has even gone so far as to urge the Bush administration to consult with Senate Democrats before nominating any new Supreme Court justices. Similarly, the Washington Post reports that Senator Schumer has proposed the creation of a "small, bipartisan group" of senators that "should meet with the president sometime in the next few weeks and eventually even make joint recommendations to the president of nominees that are highly qualified and could get broad, bipartisan support in the Senate."
To the extent they may alleviate tensions and foster a more cordial and promising environment, these proposals should not be dismissed out of hand. Naturally, the White House believes it already does plenty of consulting, that its nominees are already subjected to rigorous congressional vetting, and that what it needs is an up-or-down vote on its choices, not help making the choices from people who don't share its predilections about the proper role of the courts. This, however, ain't beanbag, and one has to ask whether more intrusive consultation, however undesirable it may be, is preferable to even less savory alternatives, such as a continuation of the filibusters (quite likely soon extended to the Supreme Court) or a paralyzed Congress.
Nevertheless, whatever President Bush decides to do, he must make clear that any accommodations are in his discretion, not because the appointments clause mandates them. Judiciary Committee members of both parties pay close attention to developments in the law and tend to know the bar and the academy extremely well. Thus, it is conceivable that the administration could learn some valuable information in a consultative process. Democrats, moreover, could find that an openness to dialogue would offer them both more meaningful influence in the matter of appointments and a graceful way of stepping back from the abyss. But such a process should only happen if it is conceded up front that the president would be submitting to it voluntarily, and that he would not be bound to accept, or take any action on, Senate recommendations.
This brings us squarely back to the appointments clause. The comments by Senators Specter and Schumer could be taken as laying the groundwork for a legal claim that the constitution requires the president to consult with the Senate before naming candidates to fill judicial vacancies. Were such a contention made, it would not withstand scrutiny. Reasonable minds can debate whether it would be good politics for the president to negotiate prior to naming candidates for the bench, but as a matter of law the administration would be on solid footing if it declined to do so. The structure of the constitution, the plain language of the appointments clause, and Alexander Hamilton's discussion in The Federalist Papers of the Senate's contemplated advisory role all indicate that the prerogative to nominate is the president's alone.
First, the appointments clause, which includes the nomination power, is located in Article II, the portion of the constitution that defines the executive power. The placement of an enumerated power in the article that sets out a particular branch's authority is highly significant. Recall, for example, that during the Civil War, Chief Justice Roger Taney held that President Lincoln's unilateral suspension of the writ of habeas corpus violated the constitution. The constitution does not say that only congress is authorized to suspend the writ — it is silent on the matter. What Taney found dispositive, however, was that the framers had placed the suspension clause in Article I, which confers the powers of congress. To the contrary, the nomination power is unambiguous — it is not only found in Article II but is expressly vested in the president.
Bringing us to the second and most salient point: the straightforward language itself. The appointments clause (Article II, Section 2, Paragraph 2) states, in pertinent part, that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court and all other officers of the United States" (which includes judges of the lower federal courts). The clause thus explicitly distinguishes between the power to nominate and the power to appoint. Under its plain terms, the president alone nominates; it is only the subsequent, final appointment that is subject to the advice and consent of the senate.
It would have been a very simple matter for the framers to have written that the president "by and with the advice and consent of the senate, shall nominate and appoint" judges. They very pointedly did not do that. The clause contemplates no advisory role for the senate in the nomination process — only in the consideration of already-named nominees.
Nor need we content ourselves with such linguistic deductions about what the framers must have intended. As Mark Levin has recently pointed out in his bestselling book, Men in Black (188-89), Hamilton made it abundantly clear. In Federalist No. 66, he flatly asserted: "It will be the office of the President to nominate, and, with the advice and consent of the senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice he may have made." (Emphasis added.)
In Federalist No. 76, moreover, Hamilton offered an extensive explanation of the rationale, precluding any suggestion of a senate role in nominations. The framers believed that reposing this power in the "sole and undivided responsibility of" a single official, the president, would "naturally beget a livelier sense of duty and a more exact regard for reputation" than could be achieved were the decision left to a committee. For them, a committee (such as the one Senator Schumer suggests) would only serve to multiply the number of "personal considerations" (as opposed to considerations of competence and fitness) that might result in poor choices.
Keeping with this theme of minimizing personal considerations, Hamilton also argued that because the power to nominate would be vested in the president alone, and because the senate would be limited to the power to overrule once the nomination was made, senators would realize that all they could achieve by overruling was yet another candidate of the president's unilateral choosing. The idea — which has rich resonance today — was precisely to discourage the unreasonable withholding of consent, since the senators "could not assure themselves," Hamilton wrote, "that the person they might wish would be brought forward by a second or by any subsequent nomination."
So, far from suggesting cooperative nominations, the framers concluded that having a joint Senate-president process would be bad policy. Does that mean it would still be bad policy today?
Not necessarily. It is certainly plausible to argue that many of the framers' assumptions no longer obtain. The government, the courts and the nation itself have gotten so much bigger now than they were in the 18th Century that, as a practical matter, the president chooses nominees by committee anyway. Senators, furthermore, have long played a key, if unofficial, role in the president's selection of appointees from their individual states. One need not agree with the notion in order to admit that it is far from outlandish to suggest that presidents might make a habit of seeking the Senate's advice before announcing a nomination — and in a time of extraordinary rancor it might indeed be a viable tonic.
But here is the important point — the one that distinguishes adherents of objective originalism from those who prefer a highly subjective "organic constitution." Acknowledging that conditions have evolved, that assumptions may have changed as well, and that the president might well decide that conciliatory consultation might be preferable to a stalemate is a far distance from saying that the constitution should be read as if it says and means something drastically different from what it actually says and means.
When it comes to regulating government officials, the constitution generally sets baseline requirements, not ceilings. The fact that the appointments clause does not require the president to consult with the Senate before naming candidates for the bench does not prohibit him from doing so in his discretion. But as far as the constitution is concerned, the Senate's advice is required only after the president has made his nominations.
— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.
The Filibuster
by Ronald D. Rotunda
Ronald Rotunda, author, and law professor at George Mason University, is a senior fellow with the Cato Institute.
The filibuster has a long history, but its pedigree should not make us proud. It prevented civil rights legislation from being adopted for nearly a century. Now a minority of senators is using it to prevent the Senate from voting on judicial nominees even though a majority of the senators from both parties would vote to confirm if they only could vote.
The modern filibuster is much more powerful than its historical predecessor because it is invisible: The Senate rules do not require any senator to actually hold the floor to filibuster. Instead, a minority of 41 senators simply notifies the Senate leadership of its intent to filibuster. Other Senate business goes on, but a vote on a particular issue -- a nomination -- cannot be brought to a vote. The present Senate rules that create the filibuster also do not allow the Senate to change the filibuster rules unless 67 senators agree. However, these rules should not bind the present Senate any more than a statute that says that it cannot be repealed until 67 percent of the Senate votes to repeal the statute. An earlier Senate cannot bind a present Senate on this issue.
The Senate, unlike the House, is often called a continuing body because only one-third of its members are elected every two years. But that does not give the senators of a prior generation (some of whom were defeated in prior elections) the right to prevent the present Senate from choosing, by simple majority, the rules governing its procedure. For purposes of deciding which rules to follow, the Senate starts anew every two years.
It is easy to make this point by looking at simple logic and history.
If a prior Senate can bind a later Senate, that would mean that the prior Senate could, by mere rule, impose what amounts to an important amendment to the Constitution regarding the number of votes needed to confirm a nominee. The Senate cannot change the number of votes needed to confirm a nominee any more than it can properly change the number of votes necessary for consenting to the ratification of a treaty from two-thirds to 75 percent or 51 percent.
Recall that Senator James Jeffords became an independent after the 2000 election. That shifted control of the Senate from Republicans to Democrats. The new Senate then reorganized itself, changed committee staff, and so on. However, if a prior Senate can really bind the present Senate, then an earlier Senate could have passed a rule that prevents reorganizing the Senate. We all know that such an effort would be as outrageous as the Federalist Party (which lost in the election of 1800) continuing to control the Senate and decide committee ratios, staff allocations, etc., as long as 34 percent of the Senate remained Federalist.
One might respond: But that would mean that the Senate could not vote on anything while there was a filibuster going on. Ah, but as mentioned above, the Senate rules do not require any senator to actually take the floor to speak: Senators simply notify the Senate leadership of the plan to filibuster on a particular bill or nomination and that kills it dead in its tracks. Or, think of it this way: What if the prior Senate (before the most recent election that shifted control to the Republicans) used its rule-making power to provide that judicial appointments require 75 percent or even unanimous consent, and that the Senate could not change that rule except by a two-thirds majority? Surely, no one would argue that the prior Senate could prevent the present Senate from changing that rule. Filibusters cannot be used to prevent changes in the rules that govern filibusters.
The present Senate rules are no more sacrosanct than a statute. If the president signs a law, it remains in effect until the House and Senate repeal it and the president signs the repealing legislation. The prior law cannot provide that it remains law unless 67 percent of the senators approve the repeal. Similarly, a Senate rule remains in effect only until a majority of the Senate changes that rule. The prior rule cannot provide that it remains law unless 67 percent of the senators approve the repeal, but that is what the Senate rules now provide.
Precedent also supports this principle. In 1975 the Senators changed the filibuster requirement from 67 votes to 60, after concluding that it only takes a simple majority of Senators to change the rules governing their proceedings. As Senate Majority Leader Mike Mansfield (D-MT) said at the time: "We cannot allow a minority" of the senators "to grab the Senate by the throat and hold it there." Senators Leahy, Kennedy, Byrd, and Biden, all agreed. Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is "plainly unconstitutional."
That was then. Now, a minority of senators once again claims that the Senate cannot change it rules to prevent this filibuster unless a super-majority agree. That is wrong. To paraphrase Senator Henry Cabot Lodge, to vote without debate is unwise, but to debate without even being able to vote is ridiculous.
From Senator Cornyn:
BYRD WP OP-ED: Factually inaccurate, inconsistent with his voting record
U.S. Sen. Robert Byrd (D-W.Va.) had an op-ed in the Washington Post today (‘Nuking’ Free Speech, http://www.washingtonpost.com/wp-dyn/articles/A5692-2005Mar3.html) arguing against the current Senate proposal to restore the rights of the majority and end the unprecedented filibusters against the President’s Judicial nominees. But his arguments were both factually wrong, and historically inconsistent with his own voting record.
Sen. Byrd said that restoring Senate tradition “could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate's very essence -- the constitutional privilege of free speech and debate.” But history—and Sen. Byrd’s own actions—prove otherwise.
In fact, Sen. Byrd is often credited with pioneering the Senate procedure he now derides as a denial of free speech and a threat to our liberties. Recall that it was Sen. Byrd who led the charge to establish new Senate precedents in 1977, 1979, 1980, and 1987 - including a number of precedents that were designed specifically to stop filibusters and other delay tactics that were previously authorized under Senate rules or prior precedents:
In 1977, Senator Byrd led the establishment of a new precedent in order to break a post-cloture filibuster on a natural gas deregulation bill, stating:
“I make the point of order that when the Senate is operating under cloture, the Chair is required to take the initiative under Rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order." That precedent contravened prior precedent, which would have required the Chair to await a point of order from the floor.
In 1979, Senator Byrd led the establishment of a new precedent that allowed the Chair to rule on questions of germaneness raised during the consideration of appropriations bills - notwithstanding Senate Rule XVI, which states that all questions of germaneness on appropriations bills must be decided by the full Senate.
In 1980, Senator Byrd led the establishment of a new precedent to require an immediate vote, without debate, on any motion to go into executive session to consider a particular nomination. His new precedent was specifically designed, in his words, to "deal with a filibuster on the motion to proceed" to a nomination. Previously, a motion to proceed to a particular nomination was debatable. The new precedent was sustained by a vote of 54-38, and yet the precedent did not “rob a senator of the right to speak out against an overreaching executive branch,” as Sen. Byrd claimed in his op-ed.
In 1987, Senator Byrd caused establishment of a new precedent declaring that certain tactics were to be construed as dilatory during roll call votes and therefore always out of order no matter what - even though the text of the Senate rules had clearly authorized such tactics. Previously, dilatory tactics were out of order only after cloture had been invoked.
And in 1975, the Senate voted three times (51-42, 48-40, and 46-43) in support of the power of a Senate majority under Article I to change the rules. Those precedents forced the Senate to act and led to a major change in the cloture rule.
The Constitution and the U.S. Supreme Court:
* Article I, Section 5 of the Constitution clearly states that "[e]ach House may determine the Rules of its Proceedings."
* The U.S. Supreme Court has unanimously held that, unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. [See United States v. Ballin (1892).]
As Sen. Byrd must surely know after decades in the Senate, a majority of Senators has also always possessed the constitutional power to establish new Senate precedents - including precedents that reverse prior precedents, and precedents that contravene the text of the standing rules of the Senate. And I think he was very clear in 1979 when he claimed exactly the opposite of what he averred in today’s op-ed:
“This Congress is not obliged to be bound by the dead hand of the past. . . . . The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time.... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.”
--U.S. Sen. Robert Byrd, Jan. 15, 1979
Sen. Byrd also claimed in the second graf that “President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year.” That charge, though, is simply inaccurate. NONE of President Bush’s judicial nominees have “been turned down in the Senate.” None. The nominees were denied a vote altogether—despite the fact that they all had (and have) bipartisan majority support. ALL would be confirmed if a partisan minority of the Senate would allow an up-or-down vote.
One of the biggest advantages of being the majority party should be the ability to get your judicial nominees approved. The Republicans who are against the nuclear option are being way too "fair". The Democrats are cutthroat: if they held the majority and the nuclear option was needed to get their judicial nominees thru, they'd use it in a heartbeat.
Maybe we should give the Democrats an ultimatum and a deadline---and then use the nuclear option if they don't comply. Maybe that would make some of the "wobbly" six or seven feel better about voting for it.
"The present philosophical war being waged here is not intended to decide the nature of our constitutional republic as being liberal or conservative, but will instead determine whether our constitutional republic, as envisioned by the founders, will prevail or fade into oblivion." --Christopher Adamo, 2005
"Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure." --Abraham Lincoln, 1863--Boot Hill
BTTT This is probably one of the most important discussions I've seen on FR in a while!
They are all a bunch of sheep, including the pres. They do nothing to protect our border, allow unconstitutional decisions to stand, grow government and treat us, their hard working constituents, like children. I am finally done with the republican party - come hell or high water I will vote for the Constitution party from now on.
Amen.
And the Republicans in the legislative and executive branches just made the same mistake again. Allowing the courts to defy their action on behalf of Terri Schiavo turned this into a big victory for liberals and the imperial judiciary.
Finish what you start, GOP.
After this week's grand show of Republican impotence, I expect a quick cave-in in the Senate too.