Posted on 12/17/2004 5:59:58 AM PST by Congressman Billybob
It’s been a while since I’ve inflicted a heavy dose of constitutional law on y’all. Sorry, but it’s necessary, since President Bush will likely make several Supreme Court nominations next term. Therefore, the rules of the Senate are at issue.
I can see you nodding off already. Pinch yourself, then let’s have at it.
The Constitution says, in Article II, Section 2, clause 2, that the President can establish treaties with the “advice and consent” of the Senate by a two-thirds vote. But for Senate approval of presidential appointments, no supra-majority is required. That means majority vote only.
In this term the minority Democrats in the Senate prevented a vote on several judicial nominees to various District and Circuit Courts. The Circuit Courts are important as the last appeal before the US Supreme Court. Also, the Circuit Courts are the usual (but not mandatory) breeding grounds for Supreme Court Justices.
In each instance, the Republicans plus a few Democrats were prepared to confirm the nominees. But the floor votes were prevented by the filibuster rule. The what? There is a tradition of unlimited debate in the Senate, which until 1917 could be shut off by a majority vote on the motion of four Senators. You may have read descriptions different than that in “reputable” publications including the New York Times. They are wrong. This is based on the journal of a Senator present in 1789 when unlimited debate was established.
Anyway, in 1917 the Senate established a rule that debate could be shut off by a vote of 67 Senators, later lowered to 60. You see the problem. It only takes 51 Senators to confirm a nominee, but it now takes 60 Senators to vote to end debate, in order to vote on him/her.
Supporters of this rear guard action by the Senate Democrats point to this: Article I, Section 5, clause 2, “Each house may determine the rules of its proceedings.” So the claim is, if Senate Rule XXII requires a supra-majority, well that must be constitutional.
Not so fast, Constitution-breath. When it looks like the Constitution contradicts itself, some reexamination is in order. Consider this example: The “Advice and Consent” Clause requires a two-thirds vote to approve any treaty. What if the Senate wrote a rule that 90 Senators must approve a treaty?
The answer is obvious. Senate rules are for internal application and governance of its own members. The Senate is without power to write a rule which alters the Constitution. So it cannot increase the votes to approve a treaty. Likewise, it cannot increase the votes to approve a judicial nominee.
Wadda ya mean they can’t do that? I read in the papers that the Senate has done exactly that, I hear you cry. Politics has been described as “the art of the possible.” Here’s a more basic definition. Politics is whatever you can get away with, without going to jail. In this Senate, the Democrats have gotten away with that tactic. Occasionally in the past, both Republicans and Democrats have violated the standard of majority vote for judicial nominees.
But the Constitution would be as porous as Swiss cheese if, each time it was violated, the violation became standard and the constitutional text no longer applied.
So, what is the solution? The Republicans, led by Majority Leader Bill Frist, must use “the nuclear option.” What’s that?
A Senator who supports a Bush nominee and opposes the use of the filibuster stands and says, “Point of order, Mr. President. Senate Rule XXII cannot apply to a judicial nomination because that increases the majority to approve a judicial nominee.” Vice President Dick Cheney presiding, replies, “The point is well taken. Rule XXII does not apply.” The ruling of the Chair stands, unless overturned by a majority.
Has the nuclear option ever been used? Yes, by Democrat Senator Robert Byrd, so long ago that even he may not remember it. So, why wasn’t it used in the present Congress? The Republicans had a bare majority. Some of their Senators, without naming names, were “squish.” They were unreliable..
There will be four more Republican Senators, come January. If Bill Frist can count 51 noses without the squish Republicans, the nuclear option will be applied. The filibuster will be ended for judicial nominations, but not for ordinary legislation.
If you’re still awake at this point, remember you heard it here first. And if this speaks for you, send a copy to your own Senators.
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
Read Article II, Section 2, clause 2, and see if you can tease any other meaning from it. I think not.
The Dems in this administration have been engaging in "filibuster lite." They say they are going to filibuster, and the Repubs proceed as if there was talking all night. But the talking all night has not been done.
Billybob
Excellent and timely!
This is an example, per Jefferson, of "one legislature seeking to bind the next legislature." The nuclear option could be used on this as well. But that's a separate story.
Billybob
That's precisely my point. If you believe that an existing rule can bind a new Congress, aren't you agreeing that if today's Congress adopts a rule which requires a 7/8 majority to overturn their new rule mandating a one-day work week - that such a rule would bind all subsequent congresses?
... Waiting for the people who argue that the Senate should keep this unconstitutional practice, for the time Republicans want to act in an unconstitutional fashion.
I didn't find this to be "a heavy dose of constitutional law" at all but a very clear explanation of the situation. Thank you.
Actually, I suspect that the Dems will realize their exposure and NOT use their filibuster this time, to avoid having this jammed down their throats until they find a candidate that they believe they can win on. They will save the filibuster against the time when they can win the battle over it, perhaps after another election or two.
Thanks for your post and efforts. The ol' Constitution-to-the-head approach will work if we keep it cocked, locked and loaded at the Leftists. Prosecution for treason is another drum we must pound loudly and enforce! -- lest treason cease to be a capital crime by default!
Art. 2, Sect. 2, Clause 2:
"He 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
Nothing there says anything about a simple majority, no matter how it's "teased". You argue that the Constitution requires a simple majority, but the Constitution is silent as to this issue. Read the entirety of Sect. I and tell me if you can "tease" the words "simple majority" out of it. You argue that Congress can't determine this issue, but then tell me that Congress has "concluded" that "all else is majority vote". It may be "done deal" via the SCOTUS, it may be a good idea, it may be the way it's been done for 200 years, but it's not in the Constitution textually, which was my original point. You can't have it both ways.
1. Lincoln Chafee
2. Olympia Snowe
3. Susan Collins
4. Arlen Specter
Those are the four RINOs that regularly cross over to the RATs. Assuming all four defected at once (unlikely), 55-4 = 51. We'd still win. McCain and Hagel are mavericks and loudmouths but pretty much vote party line on important issues (see ACU ratings)
You've got to be kidding. Actually, I know you're not given your political views. Your point is ridiculous. Majority voting was the principle in Parliament and the default rule of ever colonial assembly. And if the rule isn't a majority, then what is it? 53 votes? 56? 42? 48 on Tuesdays, but 63 on Wednesdays?
Also, when have the Dems "filibustered" any judicial nominee from this administration? I thought a filibuster required holding the floor.
You thought wrong. They altered that awhile back so that Senators wouldn't be passing out on the floor. The minority basically announces a filibuster, and the majority tries for cloture. But the long speeches are a thing of the past, and that's been the case long before the judicial controversy.
And you obviously have not read the history of parliamentary bodies, beginning 1,000 years ago in Iceland, that all decisions are by majority vote, unless specific requirements make them more than that.
In short, you are beating a dead horse.
Billybob
With certainty? You're right. But its not difficult to draw a reasonable conclusion based on your posting history. Pointless to argue it because there's no objective way to confirm or reject whatever my assumptions are.
As a practical matter, bills can be killed in a committee with the vote of fewer than ten senators. You want to show me where that's in the constitution? Or was that the "default rule of ever colonial assembly", whatever that means?
That is a Senate rule, adopted by the Senate. If you read the rules, its in there. But like other rules, its an internal rule only, and has no legal status. You wanna find a rule that says that some kind of super-majority is needed for judicial appointments? Even if there was, it wouldn't change the point. Senate rules do not have any enduring legal status from one Senate to the next.
Or was that the "default rule of ever colonial assembly", whatever that means?
What that means is that absent express provision to the contrary, a majority is all that is necessary to exact legislation or obtain the consent of a legislative body. Your apparent argument that there must be an affirmative statement that "advise and consent" requires a supermajority stands that basic principle on its head.
If you believe in "expressio unius est exclusio alterius", you would believe that the cloture rule is unconstitutional.
No, I wouldn't. That principle refers to expressions contained in the same document. You are attempting to extend that principle to a Senate rule, which by definition is subordinate to the Constitution anyway. There is nothing the least bit inconsistent between a Senate rule requiring a supermajority to cutoff debate and the Constitution. The rule is internal to the Senate, and can be changed at any time if a majority of Senators agree. In other words, the supermajority requirement really is a sham, able to be overridden at any time by a simple majority. Its not unconstitutional.
The stronger argument is that the supermajorities listed in the constitution are illustrative, rather than being an exhaustive list of all such rules that can ever be imposed.
It's not a stronger argument -- its a terrible one. You really think the drafters intended to have supermajorities required for actions other than those specifically enumerated, but decided not to list them? And what was to be the standard for determining when supermajorities would be required? Sheer whim? And as I pointed out above, why not 53 votes? Or 73? If the stated supermajoirty requirement is only "illustrative", and there is no other guidance given, then you could just make it up as you went along. That's just plain ridiculous. As to my other question, a filibuster is still a filibuster, and requires holding the floor during debate.
But because it is only an internal rule, the pracitce as accepted by the Senators themselves amounts to a new rule. And that's the way its been done in the Senate long before Dubya too office. They haven't made them hold the floor for decades.
That being said, you're still wrong on this one. Heh.
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