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Breaking the Rules: The Framers intended no more than a Senate majority to approve judges.
National Review Online ^ | May 17, 2005 | Clarke D. Forsythe

Posted on 05/17/2005 10:17:00 AM PDT by xsysmgr

The sharpening debate in the U.S. Senate over whether Democrats can block President Bush’s judicial nominations by filibuster raises the basic question of the scope of the Senate’s constitutional role to give “Advice and Consent.” What does it mean for the Senate to give “Advice and Consent” for federal judges?

Many people question whether changing the rules to allow only a majority vote for confirmations is proper, or even constitutional. However, the text of the Constitution, the record of the Constitutional Convention of 1787, and Supreme Court decisions all concur to show that the Constitution intended no more than a majority “vote” for the Senate’s “Advice and Consent” for judicial appointments.

The key provision is Article II, Section 2, called the Appointments Clause: “[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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 . . .”

There are three striking aspects of the Appointments Clause, all of which are intentional and not accidental.

First, it is instructive if not definitive that the Appointments Clause is contained as an explicit power in Article II, involving executive powers, not in Article I, involving legislative powers.

Second, only a simple majority is required. The clause on the treaty power, after mentioning “Advice and Consent,” requires concurrence by “two thirds of the Senators present.” The clause on the appointment of ambassadors and others, including Supreme Court justices — by contrast — does not.

This is reinforced by the contrast found in several other provisions in the Constitution where a “supermajority” vote is required. In Article I, section 3, two-thirds (of members present) are required for Senate conviction for impeachment. In Article I, section 5, two-thirds are required to expel a member of either House. Article I, section 7 requires two-thirds for overriding a presidential veto. The fact that the Constitution explicitly requires two-thirds in some contexts indicates that the Senate’s consent in Article II, section 2 is by majority vote when no supermajority vote is required.

The general rule is that majorities govern in a legislative body, unless another rule is expressly provided. Article I, section 5, for example, provides that “a Majority of each [House] shall constitute a Quorum to do Business.”

More than a century ago, the Supreme Court stated in United States v. Ballin, a unanimous decision, that “the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations . . . No such limitation is found in the federal constitution, and therefore the general law of such bodies obtains.”

Third, the particular process in the Appointments Clause — of presidential nomination and Senate “consent” by a majority — was carefully considered by the Constitutional Convention. A number of alternative processes for appointments were thoroughly considered — and rejected — by the Constitutional Convention. And this consideration took place over several months.

The Constitutional Convention considered at least three alternative options to the final Appointments Clause: (1) placing the power in the president alone, (2) in the legislature alone, (3) in the legislature with the president’s advice and consent.

On June 13, 1787, it was originally proposed that judges be “appointed by the national Legislature,” and that was rejected; Madison objected and made the alternative motion that appointments be made by the Senate, and that was at first approved. Madison specifically proposed that a “supermajority” be required for judicial appointments but this was rejected. On July 18, Nathaniel Ghorum made the alternative motion “that the Judges be appointed by the Executive with the advice & consent of the 2d branch,” (following on the practice in Massachusetts at that time). Finally, on Friday, September 7, 1787, the Convention approved the final Appointments Clause, making the president primary and the Senate (alone) secondary, with a role of “advice and consent.”

Obviously, this question is something that the Framers carefully considered. The Constitution and Supreme Court decisions are quite clear that only a majority is necessary for confirmation. Neither the filibuster, nor a supermajority vote, is part of the Advice and Consent role in the U.S. Constitution. Until the past four years, the Senate never did otherwise. Changing the Senate rules to eliminate the filibuster and only require a majority vote is not only constitutional but fits with more than 200 years of American tradition.

Clarke D. Forsythe is attorney and director of the Project in Law & Bioethics at Americans United for Life, Chicago.


TOPICS: Editorial; Government
KEYWORDS: constitutionaloption; democratnukereaction; filibuster; reidsnuclearreaction; ussenate

1 posted on 05/17/2005 10:17:01 AM PDT by xsysmgr
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To: xsysmgr

Every Judge who has ever sat on on the Supreme Court has been put there via a simple majority vote. There has not been a single exception.


2 posted on 05/17/2005 10:24:07 AM PDT by Sacajaweau (God Bless Our Troops!!)
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To: xsysmgr

Several ways of vetting judges have legitimacy. One is the select committee,another the permanent committee, third is deference to senators from the state that the candidate comes from. The last practice dates to the WASHINGTON administration. to extend the same courtesy to the minority party is absurd.


3 posted on 05/17/2005 10:28:42 AM PDT by RobbyS (JMJ)
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To: xsysmgr

Senator Chambliss (R-Georgia) did a great job making the case on Fox this morning. He made the point the conflict was between a Senate rule and the USC, and, obviously, the USC wins.


4 posted on 05/17/2005 10:42:55 AM PDT by TheDon (Euthanasia is an atrocity.)
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To: RobbyS

Note the quotation marks around 'advice and consent'. The Constitution is silent as to the exact protocol for 'advice and consent'. This was noted by no less an authority than Sen. Robert Byrd. Why doesn't the Republican majority simply send a letter signed by 51 senators to George Bush approving his appointee? Of course, it has never been done this way, but neither have filibusters been used the way the Democratic Party have been using them to block voting on judicial appointees. Just a thought.....


5 posted on 05/17/2005 10:46:38 AM PDT by VegasAce
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To: xsysmgr

Presidential appointments can be derailed through filibuster or through refusing to schedule hearings in the appropriate committee or through anonymous holds by a single Senator. All those are allowed through Senate rules, and if one of them is unconstitutional then everyone of them should be unconstitutional.


6 posted on 05/17/2005 10:47:24 AM PDT by Non-Sequitur
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To: VegasAce

The Senate could do it in executive session if they dared That is how SCOTUS deliberates on cases.


7 posted on 05/17/2005 10:54:04 AM PDT by RobbyS (JMJ)
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To: xsysmgr

as another freeper poster said the other day - we sould donate our Constitution to Iraq, as we sure as heck aren't using it anymore.

and that applies to a lot more than getting Judges voted on.


8 posted on 05/17/2005 11:09:44 AM PDT by sdpatriot (remember waco and ruby ridge)
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To: Non-Sequitur
I think you have to define "rules". Certainly any rule which violates the constitution can never be a valid rule.

So does rules mean time, place, etc...in other words, what we consider as Robert's Rules or does rules mean that theoretically, next year, they can change advise and consent to a 3/4 majority vote.

9 posted on 05/17/2005 11:13:35 AM PDT by Sacajaweau (God Bless Our Troops!!)
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To: Sacajaweau
I think you have to define "rules".

The 43 standing rules of the U.S. Senate.

Certainly any rule which violates the constitution can never be a valid rule.

True, but the Constitution allows the House and Senate to set their own rules and the filibuster does not strictly violate the Constitution because it does not change the simple majority required to confirm a candidate once that candidate comes up for approval. If you say that the filibuser is unconstitutional because it requires 60 votes to override it then you must also say that allowing the Chairman of a Senate Committee to keep a nominee from appearing before that committes is unconstitutional because one senator can prevent the entire Senate from giving the nominee an up or down vote.

10 posted on 05/17/2005 11:29:42 AM PDT by Non-Sequitur
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To: xsysmgr
While I agree that the Framers only intended a simply up or down vote regarding appointments for judges, ambassadors, cabinet secretaries, etc., the Constitution does allow the Senate to make its own rules. So why doesn't Bill Frist simply keep the Senate in session 24 hours a day and make the Democrats shut down all business by actually fillibustering? That would be a spectacle from which the DEMONRATS would take years to recover.
11 posted on 05/17/2005 11:55:56 AM PDT by Lunkhead_01
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To: Lunkhead_01

"Its the Constitution, Senator!"...Campaign to reach 4,000,000 people this week...www.usanext.org


12 posted on 05/17/2005 12:57:05 PM PDT by ceoinva
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To: xsysmgr
Neither the filibuster, nor a supermajority vote, is part of the Advice and Consent role in the U.S. Constitution.

There are two issues as I see it. What is meant by Advice and Consent and what is the purpose of a filibuster?

I had always thought the purpose of the filibuster was to bring about compromise. A filibuster of a proposed bill serves to bring about compromise; i.e. remove this clause, restate this one, add this amendment, etc. Compromise is the objective of all political discourse. However, what compromise can be sought regarding the appointment of a person? After reviewing the person’s record and having the opportunity to question the person about his record, it is time to take a decision. There is no compromise possible when reviewing the person’s record. The record is the record; it cannot change. A filibuster that does not seek compromise is disingenuous and a filibuster that cannot achieve compromise is unethical.

The Constitution is very explicit when it enumerates exactly what limited powers are granted the branches of government. The Constitution states that the President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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:

My opinion of the Advice and Consent is simple. The President nominates. The Senate is obligated to examine the appointee and provide the President with their advice. The President is obligated to consider the merits of their advice and either withdrawn his nominee or ask the Senate to vote. After the Senate has expressed their advice and the President has considered that advice the next responsible step is for the Senate to vote.

13 posted on 05/17/2005 1:21:47 PM PDT by MosesKnows
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To: MosesKnows

Very good post vis a vis what filibusters are and are not supposed to do.

Liberals are saying that a "filibuster" is defacto "advice" and that "advice" is to find someone else. Clearly, that power is not ennumerated to the senate. They can only, as a body, reject or accept the nomination by voting up or down. The minority cannot, by an adopted senate rule, (filibuster) force a "no vote" from the whole body on a candidate who has made it out of committee. Filibuster of a judge makes no sense on the merit of the idea alone, as you so clearly pointed out. Judicial filibuster is a silly idea, on its face. Kudos.


14 posted on 05/17/2005 2:00:08 PM PDT by Truth Table
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To: MosesKnows; Sacajaweau; All

This is a great article......I 've been discussing it when I call the GOP 'swingers'....Collins, McCain, Sununu, Dewine, Chaffee, Hagel & Warner.


FREE number to US Capitol

1-877-762-8762


15 posted on 05/17/2005 2:12:39 PM PDT by JulieRNR21 (Tell Senators to stop judicial filibuster....using FREE number: 1-877-762-8762)
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To: xsysmgr
The author is talking about the actual Consent vote and the rules along the road to the Consent vote as though they were the same thing. His argument is bogus on two fronts. First, nowhere does the Constitution forbid Consent-via-Supermajority. Second--even *if* the Constitution did forbid a super-majority requirement--it'd be beside the point since the Senate requires just simple majority for Consent. It takes 51 votes to confirm a nominee, not 60 or 66 or anything else. 51 votes, a majority. Essentially, the author is arguing that the Constitution forbids an action that isn't even occurring.
16 posted on 05/17/2005 2:50:15 PM PDT by Sandy
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To: xsysmgr

Liberal Democrat Judges would work to weaken and destroy the Nation. Democrats must work to block their enemies, Conservative Judges.


17 posted on 05/17/2005 2:55:13 PM PDT by Revererdrv (e)
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To: xsysmgr

The Constitutional Convention considered at least three alternative options to the final Appointments Clause: (1) placing the power in the president alone, (2) in the legislature alone, (3) in the legislature with the president’s advice and consent.

On June 13, 1787, it was originally proposed that judges be “appointed by the national Legislature,” and that was rejected; Madison objected and made the alternative motion that appointments be made by the Senate, and that was at first approved. Madison specifically proposed that a “supermajority” be required for judicial appointments but this was rejected.




PING
`


18 posted on 05/18/2005 1:19:10 AM PDT by AFPhys ((.Praying for President Bush, our troops, their families, and all my American neighbors..))
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To: xsysmgr

bttt


19 posted on 05/18/2005 1:20:07 AM PDT by nopardons
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To: AFPhys

bttt


20 posted on 05/18/2005 1:21:25 AM PDT by nopardons
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To: Sandy
It takes 51 votes to confirm a nominee, not 60 or 66 or anything else. 51 votes, a majority. Essentially, the author is arguing that the Constitution forbids an action that isn't even occurring.

Byrd's argument was similar. That the Senate has no duty to take up the nominee. That is a Constitutional question, and I think the Senate does have a duty - but that is not the point I want to make now.

As a procedural matter, given the nominee is being debated, it may be instructive to view how the Senate handles Nominations and Treaties. We know that Rule XXII (cloture) has been used to dispose of the nominee, when less than 60 votes were obtained to accomplish two things, limit debate, and vote on the candidate.

But what if, instead of looking for a YES vote, we seek a "NO" vote? How many votes would be required to postpone, table, or otherwise dispose of the nominee? Could less than a simple majority kill the nomination with a motion to table? No way! Well then, how is it then that less than a simple majority can kill the nomination otherwise?

In reading Riddick's Senate procedure (in a failed attempt to find the "talk or vote" rule), I noticed that Senate procedure required 2/3rds supermajority to postpone indefinitely, consideration of a Treaty. Likewise then, it would take a simple majority to postpone indefinitely the consideration of a nominee. Not a minority, as the DEMs have been asserting.

Most of the links below relate to "forcing a real filibuster" (I think it is impossible), and can be ignored. The point of this post is citable by only the "Appendix - Forms - and Index" link, the last link just above my closing comments.

http://www.access.gpo.gov/congress/senate/riddick/
Links to Riddick's Senate Procedure

http://www.gpo.gov/congress/senate/riddick/832-842.pdf
Executive Sessions

http://www.gpo.gov/congress/senate/riddick/938-953.pdf
Nominations (see p952)

http://www.gpo.gov/congress/senate/riddick/934-937.pdf
Motion to move the question is out of order

http://www.gpo.gov/congress/senate/riddick/1038-1078.pdf
Quorum call (see pp 1073, 1074)

http://www.gpo.gov/congress/senate/riddick/1311-1369.pdf
Unanimous Consent Agreements (see pp1329, 1330)

http://www.gpo.gov/congress/senate/riddick/1441-1608.pdf
Appendix - Forms - and Index (see pp1521- and pp1554-)

The appendix has forms and the phrases uttered by the chair. Compare the form of handling a Nomination (starting at page 1521) with the form of handling a Treaty (starting at page 1554). In particular, that for a treaty, a motion to postpone indefinitely (to not act) requires a two thirds majority.

This implies that a simple majority is required to lay aside a nominee, and that less than a simple majority is not sufficient to lay aside the nominee.

21 posted on 05/19/2005 4:15:12 AM PDT by Cboldt
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To: xsysmgr

Hey, remember, the constitution is a "living document." Besides, they're not really "rules," more like "suggestions."

Mark

PS, the next time I hear some idiot say "living document," I will force him or her to agree that the Constitution is a "legal document." Then I'm going to ask them if they would ever accept any other "legal document" as a "living document," one that will change over time!


22 posted on 05/19/2005 4:18:11 AM PDT by MarkL (I've got a fever, and the only prescription is MORE COWBELL!!!)
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To: Cboldt
The Founding Fathers actually considered a proposal put forth by Madison that Judicial nominees would be confirmed by as little as 1/3 of the Legislature:
Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

From The Records of the Federal Convention
23 posted on 05/20/2005 10:21:32 AM PDT by So Cal Rocket (Proud Member: Internet Pajama Wearers for Truth)
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To: So Cal Rocket

Here's a link to the document I referred to above:

http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s1.html


24 posted on 05/20/2005 10:22:34 AM PDT by So Cal Rocket (Proud Member: Internet Pajama Wearers for Truth)
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