Skip to comments.“Preserving” the Constitution by Spitting on It
Posted on 11/13/2003 5:38:16 PM PST by Congressman Billybob
I've just watched half of the Senate debate on judicial nominations. As my wife said with great accuracy, before going off to bed, Anyone who wants to watch that is deeply warped. However, there are at least 5,000 people who are interested in this, as I know from talking with them on the Internet as the speeches played out.
By 4 a.m. Eastern, the debate had become largely repetitious, so now it's time to write the summary. The lead for the story should be the address by Senator Zell Miller (D, Georgia) about 1:30 a.m. The mainstream media won't feature that, so I will.
Miller began with a copy of the Constitution on a board behind him. He said, Maybe it is a failing of these 71-year-old eyes, but I can't find anywhere in the Constitution the requirement that 60 Senators must approve a judicial nominee by the President. He then proceeded to bring out a magnifying glass and used it as he examined the Constitution and began his talk.
It was a homey touch, which was to be expected from a man whose official photograph shows him in a flannel shirt and blue jeans on his front porch in North Georgia, flanked by two of his dogs. But Zell Miller's comments were serious, and on point.
The Senator next put up a board with a portrait of James Madison, generally credited as being the Father of the Constitution. Next to it was a quote from the Federalist, in which Madison opposed the idea of requiring a supermajority for the House of Representatives and condemned the idea of the tyranny of the minority.
Madisons exact words were, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. That paragraph at the end of the Federalist, No. 58, concluded with the assertion that this practice [would be] subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.
As he proceeded, Zell Miller quoted from a legendary speech by Senator Margaret Chase Smith on the floor in 1950. That speech, as he acknowledged, was not on the subject of the filibuster or judicial nominations. Still, it was highly relevant because it addressed the self-inflicted damage to the institution of the Senate, whenever it abandoned its own long-held traditions.
Senator Miller then spoke briefly of the five judicial nominees who have been kept off the bench by the filibuster tactics of the Democrats. They are Miguel Estrada, who withdrew his name after two years of delay, plus four more now under that same gun. And Miller then put up a board with photographs of these five nominees. Three are women, one of them black; two are men, one of them Hispanic. Zell Miller said, Look at these nominees. This is the face of America.
He ended by saying three times, his voice rising in the Chamber with each repetition, that the judicial nominees are entitled to an up or down vote.
There was a constant theme in the speeches by the Democrats who, unlike their colleague Miller, supported the idea that the Senate could and should filibuster judicial nominees so they never receive an up or down vote on the floor. All of them piously proclaimed that they were upholding their duty under the Advise and Consent Clause of the Constitution. One even quoted from the oath of office that all federal and state officials take, to preserve, protect and defend the Constitution of the United States. I will not quote any of them by name. They richly deserve pubic condemnation for their position. But it would be unfair to condemn the ones I heard, while neglecting those yet to speak who will take the same position.
Here is the text of Article II, Section 2, which the Democratic Senators (excepting Miller) claimed to be following:
[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 ....
Over the course of two centuries the Supreme Court has consistently held that this clause means exactly what it says. Treaties must be approved by the required two-thirds vote, or they fail. On the other hand, wherever the Constitution does not require a supermajority, a simple majority is all that is necessary, such as approving all presidential appointments including judges. There are exactly five instances where the Constitution requires a supermajority. The Advise and Consent Clause itself demonstrates the distinction since the first power specifies a supermajority, but the second one does not.
In six hours of debate by Democratic Senators (their half of the 12 hours so far), not one said or even suggested that the required majority to confirm a judge is anything other than 51 Senators if all 100 Senators are present. I doubt that any of the ones to come will suggest any such thing, because this answer is black letter law in the Supreme Court. And this is precisely the up or down vote that Senator Miller, and all the Republicans who spoke, insisted is the duty of the Senate as an institution.
However, all the Democrats who spoke, except Miller, insisted that they could use a filibuster against judges they opposed, which can only be ended by using the Cloture Rule. That Rule requires a vote of 60 Senators to shut off unlimited debate. It is a hard 60, that does not decrease if any Senators are absent.
None of the Senators in favor of using the filibuster against judges ever addressed the question of whether the Senate had the power under its own Rules to change the constitutional requirement of 51 votes in favor, into 60 votes in favor. And that's the central flaw in the Democratic argument.
They claim to be defending their constitutional powers by conducting a filibuster. They claim to be protecting the Constitution, when in fact they are spitting it.
I will abide my decision not to attack any of the Democratic Senators personally. But one is speaking as I write this, who has three times referred to James Madison as the source of the cooling saucer of the Senate. It was not Madison who said that, it was George Washington, as another Democratic Senator correctly said elsewhere in the debate. But this Senator is apparently so fond of hearing his own words that he is not listening even to his own colleagues.
It is absolutely correct that the Senate was established as a calming influence in the federal government. This was accomplished in two ways in the Constitution. The Senators were given the longest terms in office, six years, rather than the four years for the President or the two years for Representatives in the House. The second way was by staggering the terms of the Senators so no more than one-third of them would be up for election in any given election year. That way, temporary passions present in a single election could not possibly remove from office a majority of the sitting Senators. James Madison, in the Federalist, referred to such a sea change in just a single election as the mere whim of a majority.
Yes, the Senate was intended as the stabilizing fly wheel of the federal government. It was intended to provide continuity. But it was not intended to allow just 40 Senators to prevent the confirmation of any judges. That provision is purely a creature of the Senate Rules. It does not appear in the Constitution and is contrary to the express provisions of the Constitution.
If the Senate honestly wanted to require 60 votes as the minimum to confirm judges, it is capable of proposing an amendment to do that. If the House agreed, and the states as well, as required in Article V, that would become the new prerequisite. But the Senate acting on its own in writing its Rules, has no power or right to change the Constitution.
The conclusion is clear, and ominous. The Senators who support this filibuster of judges are lying about the Constitution, and lying about the proper role of the Senate. And until their effort has its back broken, both the Constitution and the institution of the Senate will remain in grave danger, not just here and now, but for all times to come.
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About the Author: John Armor is an author and columnist on politics and history. He has been an active member of the Supreme Court Bar since 1976.
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This was originally put up in that thread, post #3041. However, nagigating back to find it is now quite difficult.
Congressman, you have Freep mail.
So, again.....thank you for this and ALL you do.
John / Billybob
I live on a dial-up system also. Plus my computer is choking to death. Plus we have lightning strikes and power outages regularly on the mountaintop. Sometimes it's a real chore to keep FReeping, now isn't it? LOL.
It was three ways. Senators were also appointed by state legislatures rather than the easily swayed masses.
We were up LATE, weren't we? I've been paying for "that" all day.
Your essay is pure excellence. I think I'll bookmark it.
This has been a great educational experience. I've had a chance to "meet" many senators for the first time, and I've learned some new things about Senate rules and history, as well as constitutional history.
Last night I thought the Democrats (with Schumer) had the upper hand, but their repetition of "3 million jobs lost" and "168 to 4" have become simply annoying. I'm looking forward to the Republicans applying the nuclear option at 9 am Friday, when the President of the Senate will simply declare that there is no Senate rule that requires a supermajority for judicial confirmations.
I always enjoy your insight and your ability to express yourself in a concise, yet elegant, manner.