Confessing Error: Filibusters of presidential appointees violate the Constitution.

National Review Online ^ | May 13, 2005 | Andrew C. McCarthy

[kellynla]

BTTT

[Tarpon]

A simple way to look at filibusters of nominees is assume for a minute that the Senate were to pass a rule that says they will vote on Presidential nominees in the first six months of any Presidential term, and that was it. Just take the Democrats current position to the extreme and see where you end up.

[MHGinTN]

"Filibusters of judicial nominees have always been a bad idea. They are also an unconstitutional idea. I used to think otherwise, but I have not heard an argument that overcomes the structure of the constitution. No matter who is president, nominees deserve an up-or-down vote." Andrew, the current leadership of the democrap party doesn't give a damn about the Constitution or the President's prerogative, they are all about continuing the liberal stranglehold on the courts until they get back into legislative power and can write new law that will end this uppity challenge to their liberal ideals. Demoocrats are liars and deceivers ... they will try anything, constitutional or not, to empower themselves. If you doubt it, look at the more than 40,000,000 unborn that have been slaughtered to continue abortion empowering the democrat party!

[Inwoodian]

There is another argument which is both practical and Constitutional. A president is elected at least in part for his opinion as to the role of the Judiciary in interpreting the Constitution. If a President is elected by a plurality and controls the Senate by a small majority he coceivably could never get to appoint a judge of his choosing. Indeed, he could be re-elected by a clear majority and hold the Senate by a clear (but not filibuster-proof) majority and he still would be snookered by 41 Senators from the minority. This is what is happening now and this judicial filibuster is preventing the President from carrying out his Constitutional duties. In other words, the public would be denied for eight years the result of their ballot.

[Publius6961]

Second, the continued viability of the filibuster would mean that nominees who were truly unqualified, either professionally or in their understanding of the judicial role, could be blocked by a sober minority if improperly nominated by a president — regardless of whether that president happened to be a Republican or a Democrat.

This guy jumps the shark with this statement. He had "sort of" made sense up to this point.

It is not an issue of either the president or a "committee" making the choice.

It is the president or the full Senate.
It is non-sensical to accept that, since the Senate can make its own rules, that they can adopt rules which violate the Bill of Rights and the Constitution in whole or in part.

[Non-Sequitur]

It may properly reject nominees, but it should not be able to use procedural dodges (such as filibusters or refusing in committee to consider a nominee proffered by the president) to avoid its obligation to vote one way or the other.

This is the first column I've seen that makes the logical connection between preventing the Senate from considering a nominee through filibuster and preventing the Senate from considering a nominee through refusing to schedule a committee hearing on the nomination, or refusing to allow the nominee to go to the floor even if passed out of committee. Really the only difference between the two is that the Democrats are using the filibuster now and the Republicans refused to allow hearings when Clinton was president. If Senate rules are changed to outlaw one, then they should also forbid the other.

[whereasandsoforth]

Next senate rule to be considered by democrats:

No judicial nominee will be considered if nominated by a republican president who was elected in a leap year.

[Flpoop]

That is the most logical & clear answer the Republicans could use that I've seen so far.

[CGVet58]

there is a terrible and morbid irony in your statement, the latter part of the last sentence: "...to continue abortion empowering the democrat party!...". Quite the opposite, don't you think? See below.

Compelling proof exists that this embracing of the culture of death has cost the dhimmicrats needed votes in our recent elections. As disgusting (from a Christian standpoint...) as the following may sound, if mankind must nihilistically embrace depopulation, then by far it is better them than us.

[jackbill]

Really the only difference between the two is that the Democrats are using the filibuster now and the Republicans refused to allow hearings when Clinton was president. If Senate rules are changed to outlaw one, then they should also forbid the other.

The Republicans, during the Clinton years, were not the only one who bottled nominees up in committee.

That said, Frist's offer of the other day DID require a certain time schedule for getting EVERY nominee out of committee, in addition to eliminating the filubuster for judicial nominees. His offer would solve both problems - forever. Or until the Senate changed rules again.

The only shortcoming of Frist's offer was that it was limited to Circuit and Supreme Court nominees. It should be extended to District Court judges as well.

[AaronInCarolina]

Really the only difference between the two is that the Democrats are using the filibuster now and the Republicans refused to allow hearings when Clinton was president.

If I may disagree with you, I think that this is over-simplification of the distinction between the actions of the democrats today and the actions of the republicans under Clinton. When the republicans blocked Clinton's nominees, they were done in committee by the republican majority control of the judiciary committee. Presumably, the majority members of the senate majority committee were reflective of how the full senate would have voted. When the majority members of the senate judiciary committee voted to deny a vote for Clinton's nominee, it was understood that the nominee would have been voted down in the full senate vote, so they appropriately used their majority status, and was not therefore unconstitutional. In other words the committee did not block a nominee that would otherwise have been confirmed by the full senate. That is the exact opposite of what the democrats are doing with their minority status wielding of the filibuster. The minority party is using legislative branch procedural gimmicks to prevent the constitutionally mandated advice and consent.

[Non-Sequitur]

If I may disagree with you, I think that this is over-simplification of the distinction between the actions of the democrats today and the actions of the republicans under Clinton.

The arguement is that by filibustering the nominee then the Democrats are denying the Senate a chance to advise and consent. So, with all due respect, that is no different that what the Republicans did by denying nominees committee hearings. You may try to soften it by insisting that nothing was lost because the full senate would no doubt have voted the nominee down anyway, but that is a cop out. "An up or down vote," is what the Republicans say they want. Yet an up or down vote was what they denied Clinton nominees. I'll repeat, if one tactic is unconstitutional then so should the other be.

And besides, when the Senate Judiciary Committee did vote to send the James A. Beaty, Jr. nominee to the full Senate for a seat on the 9th Circuit, Jesse Helms blocked if from consideration.

[jcb8199]

Read later

[hosepipe]

[ Confessing Error: Filibusters of presidential appointees violate the Constitution. ]

Well treason violates the Constitution too but it is defacto legal since its impossible to indite and convict for it..

We don't even HAVE any laws in the book countering Sedition..

Thats an argument with no teeth..

[AaronInCarolina]

The arguement is that by filibustering the nominee then the Democrats are denying the Senate a chance to advise and consent. So, with all due respect, that is no different that what the Republicans did by denying nominees committee hearings. You may try to soften it by insisting that nothing was lost because the full senate would no doubt have voted the nominee down anyway, but that is a cop out. "An up or down vote," is what the Republicans say they want. Yet an up or down vote was what they denied Clinton nominees. I'll repeat, if one tactic is unconstitutional then so should the other be.

And besides, when the Senate Judiciary Committee did vote to send the James A. Beaty, Jr. nominee to the full Senate for a seat on the 9th Circuit, Jesse Helms blocked if from consideration.

The constitution says nothing about an up or down vote or full committee hearings. In fact it says little about the details of what Advice and Consent mean. One can only infer that Consent means majority consent. My own opinion is that if the majority leaders of the senate judiciary committee are representative of the full senate then their majority consent will suffice, and is therefore in keeping, (at least in spirit) with the constitution and conversely completely different than what the democrats are doing.

I am not aware of the details regarding Mr. Beaty. When did that happen? Was he (Helms) successful and was it in opposition to a majority opinion? I will not defend the procedural gimmicks that Jesse Helms perpetrated if they were counter to the majority opinion of the senate. That, in my opinion, would be unconstitutional.

[MHGinTN]

You would surely agree that for thirty years the democrap party has defended the indefensible because of their feminist, liberal, societal engineering leftist abortion-demanding constituencies?

[CGVet58]

100% - my point is that their constituency must, perforce (because of the same policies they promote) decline.

It is a crazy world we live in, so Orwellian in many aspects. Good is bad, pleasure in the now chosen by so many over the Saving Grace of eternity. We are "radical", they "mainstream"; even their use of monikers like "Liberal" and "Progressive" are but self-anointed verbal pre-emptions that betray the original and classic meaning (individual rights, low taxes, free market, rule-of-law, suspicion of government) of the word "Liberal".

But it is also a world that currently has much of their handprint stamped upon it's formation. To deny this, in the face of the above paragraph, with the empirical proof we live with every day of the results of our current socialized public education system, is not be realistic.

Yes, they have "empowered" themselves with their death-cult - but their power is now, and fading every day. It is a false power, and they will wither into nothing as a result.

[Ernest_at_the_Beach]

In other words, the public would be denied for eight years the result of their ballot.

That's the way I see it!

[SoothingDave]

Could the Senate, for example, make a rule that said: “the Senate will only consider presidential appointments in even-numbered years”? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. It would nullify the president’s express constitutional authority to appoint most high government officials (art. II, sec. 2, cl. 2). That is, such a Senate rule could force the president to try to govern not only bereft of the ability to choose judges but, in fact, with no Cabinet and sub-Cabinet officials.

Yes, it could. The operating question is "Who is going to stop them?" Is some judge or justice going to order the Senate to hold hearings and vote? Is the President going to send in some executive branch police force to hold guns to the Senator's heads and make them vote?

This is nonsense. It's a political question and it's up to the Senate to decide how to conduct its business. In no way is any question of parliamentary procedures in effect in the Senate a Constitutional question.

The GOP, were it not the Stupid Party, would make the issue clear to the American people and demand the political muscle they need to carry through with what they were elected to do.

SD