“Preserving” the Constitution by Spitting on It

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.

Madison’s 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.

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.

Thanks for posting Zell's speech. I count myself one of the 'seriously warped' who watches things like Senatorial debacles and frau Hillary speeches about 'squandering' America's fortune and goodwill late at night, much to my wife's chagrin.

I have a question for you or anyone who knows. I often hear the Democrats claim that they have graciously confirmed either 95% or 98% of Bush's judicial nominees. What's up with that? They must be either lying or comparing apples and oranges.

The figure the Democrats are using is 98%, and it has three errors. The first is, as you surmise, they are combining apples and oranges. Most of those confirmed judges are for the District Courts, the trial level in the federal system. These judges the Democrats feel are not threatening.

The real action is for the Circuit Court nominees. These are the appellate judges just below the Supreme Court. These judges set most of the judicial policy in the US by reviewing the decisions made by the trial courts. Also, the next nominees for Justices on the Supreme Court will be drawn (probably) from the ranks of the Circuit Court judges. In this critical category, the Senate has confirmed 29 but is now holding up 6, and the number held up here will probably climb to 12 shortly.

The second error in the 98% is the impression that this is a "good" number. If 98% of all the planes flying in the US arrived safely where intended, there would be 72 plane crashes every day, for instance.

But the most basic error in the number is that it refers to violations of the Constitution. The Constitution, Article II, Section 2, requires only a simple majority of 51 votes, not 60 votes, to confirm judges. Senators, like all other elected and appointed officials in the US, take an oath to obey and preserve the US Constitution. That oath is 100%, and contains no clause that says, "unless I think it is really, REALLY important to violate the Constitution."

There are about a million churches in the US. A 98% obedience to the Constitution would mean that 20,000 churches could be closed without offense. There are 2,000 daily newspapers, meaning 40 could be closed without offense. There are 200 million voters in the US, meaning 4 million could be denied the right to vote without offence. You get the picture.

In short, the Democrats are following a frequent tactic of theirs. Figure out the simplest possible lie to cover for the truth of their hijacking the judiciary, with two requirements. The lie must be easily understood, and the lie must have a good chance of being accepted by a substantial number of the American people. The targets for the lie are the more ignorant Americans, the ones who tend to be Democrats anyway.

Does that answer your questions?

John / Billybob

When the use of the House or Senate Rule violates the Constitution, the Court can tell the House or Senate what to do. See Powell v. McCormick, where the Court "reversed" the failure of the House to seat its corrupt but overwhelmingly reelected Congressman from Harlem.

Sure, I can understand that. If rules passed by the Senate contradict another part of the Constitution. I just don't see how requiring a super-majority in a rules commitee violates the constitution. If the super-majority was required for the general vote, that would be different. I suppose the courts could theoretically extend the principle to a committee. It wouldn't have to stop there even.

The supermajority is being demanded and obtained (for the moment) on the floor of the Senate, not in the Rules Committee or any other, including Judiciary. Article II, Section 2, is quite specific -- 2/3rds of the Senators for treaty ratification, a simple majority for confirmation of presidential appointments.

The Supreme Court (in a treaty matter, not a filibuster matter) has ruled that the two clauses of Art. II, Sect. 2, are distinct and the first means 2/3rds and the second means a simple majority.

Most importantly, the Senate itself has consistently, since it was first organized in 1789, followed the practice that a floor vote on ANY nominee including judicial ALWAYS requires a simple majority. I put myself through about 24 hour of listening to the Senate "debate." Not once did ANY Democrat stand up on his or her hind legs and say that more than a majority vote was required to confirm these judges. And none said that because they know d*mned well it would be a lie.

The question is not what Art. II, Sect. 2 means. It is how to enforce that known meaning. Can it be done by the Senate itself by either of two routes? Would the Court be willing to enforce it by telling the Senate what to do?

Congressman Billybob

Latest column, "Double Crossing at the Rio Grande," discussion thread. IF YOU WANT A FREEPER IN CONGRESS, CLICK HERE.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.