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.
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.
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.
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.
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.....
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.
The Senate could do it in executive session if they dared That is how SCOTUS deliberates on cases.
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.
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.
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.
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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.
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.
This is a great article......I 've been discussing it when I call the GOP 'swingers'....Collins, McCain, Sununu, Dewine, Chaffee, Hagel & Warner.
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Liberal Democrat Judges would work to weaken and destroy the Nation. Democrats must work to block their enemies, Conservative Judges.
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.
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