THE CONSTITUTIONAL OPTION!
Posted on 05/24/2005 8:14:07 PM PDT by AndyMeyers
The "Compromise" on Judicial Nominations is Unconstitutional
The sellout by the seven John McCain-led Republicans on judicial nominations has undermined the majority rule of the Republican Party. The Democrats have a right to celebrate they won on all counts. By agreeing to allow votes on three of the ten Bush nominees the Democrats ensure their ability to filibuster all judicial nominees.
The Republican grassroots has worked extremely hard for thirty years to make the Republican Party the Majority Party in both Houses and the Executive Branch. And they are going to resent the sellout by McCain and his merry band of turncoats. The Majority Party should act like a Majority Party. The Republicans won at the polls but are losing at governing because of outsized egos like McCain's. Frist needs to take back control of the Republican Majority by disciplining McCain and the other turncoats.
The seven Republicans are: John McCain - Arizona; Lindsey Graham - South Carolina; John Warner - Virginia; Mike DeWine - Ohio; Susan Collins - Maine; Olympia Snow - Maine; Lincoln Chafee - Rhode Island.
Despite what the Republicans say about no filibuster of judicial nominees, except for extraordinary circumstances, the Democrats have signaled their intent to filibuster any Bush judicial nominee who is a conservative with statements like "The integrity of the Supreme Court has been protected from the undue influence of the vocal, radical right wing" uttered by Senate Minority Leader Harry Reid (D) - Nevada. The fact is that the Senate in its 214-year history has never filibustered a judicial nomination to the Supreme Court or to one of the other federal courts.
The Memorandum of the Compromise states in part "..We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations.." The Democrats and seven Republicans are telling the President that he has to consult with them before he nominates any candidate for a federal judicial appointment. The Senators also believe that they can make a rule providing for the filibuster of judicial nominations.
The Democrats and the seven Republicans are simply wrong on their claims that the Senate has equal authority with the President on judicial nominations and that the Senate can require 60 votes to "advise and consent" on appointing judicial nominees.
Article II Section 2 Clause 2 of the Constitution states:
"He (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 (inferior federal courts) 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."
The language of Article II is clear on nominating Judges of the Supreme Court and inferior courts. The President nominates first and then the Senate "Advises and Consents" on appointments. The Constitution does not provide for any involvement by the Senate in judicial nominations. It provides only for the Senate's advice and consent on appointments.
Article II requires the concurrence of two-thirds of Senators present for approving treaties but it omits the two-thirds requirement for appointing judges. This omission has to be deliberate, given that the two different "Advice and Consent of the Senate" requirements occur in the same sentence of the same Clause and Section of the Constitution. The drafters and ratifiers of the U.S. Constitution clearly intended for the President's judicial appointments to be approved by a simple majority of the Senators present. In today's case that is 51 Senators, not 60. There can be no other reasonable interpretation of the language.
A Senate rule providing for filibustering judicial nominations does not trump the Constitution.
The actions of the Democrats and seven Republicans are simply unconstitutional.
The Republican grassroots need to retire the "seven" turncoats in the next election.
The American public should reject the unconstitutional actions of the Democrats and ignore the dominant media on this issue.
Couldn't agree more!
Frist needs to take back control of the Republican Majority by disciplining McCain and the other turncoats.
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This guy and the other Propeller Heads, like Orin Hatch and Anal Sphincter feel they have accomplished a great deal when they control their bowel movements.
The whole Congress is in Bed with the New World Order, the US Constitution is being sold out.
Sorry but I suspect it is perfectly legal for 14 members of the Senate to band together and decide to vote a certain way. That is what this is about.
Judge Bork was on Hannity today, and said this argument is hogwash. The Senate is entitled to set its own rules for the handling of nominees.
Exactly what did he say? That the filibusters are okay? That the filibusters are not okay? or that the Senate can decide either way?
vaudine
He does not like filibusters and believes they should not be used against nominees... as a matter of policy, not constitutional jurisprudence (he believes the filibuster rule is perfectly constitutional). A rule repealing the filibuster rule would likewise be constitutional, in Bork's estimation.
Let's get The U.S. Constitution Party on the ballot in all 50 states - select informed, patriotic, candidates for every office!
Yes, most certainly they can do that BUT, what they have done is UNconstitutional. Period.
An agreement between 14 senators is NOT binding on the President. You can not amend the constitution this way.
But the democrats will act AS IF this is now what "advise and consent" means. Do you really think that the democrats won't do this? When has it ever meant that the President MUST talk and get their approval first for his nominees?
Yep. It's similar to an alliance in "Survivor". :-)
This "compromise" has effectively fillibustered 7 out of 10 of Bush's nominees without the Dems even having to do it! What were those 7 Republ-Ocrats thinking? Oh, right, they weren't.
I got a telephone call from a good friend this afternoon, a highly educated and accomplished businessman, and generally a reliable conservative. However, he really surprised me by telling me how pleased he was that the cloture rule wasn't changed. "This is the way the founding fathers designed the Senate to operate and we have no business tampering with it," he said. He really thinks the 60 vote cloture rule is written into the Constitution.
And Reid has been feeding that fantasy with plainly deceitful statements and outrageous demagoguery.
I am not as disappointed in Senate Republicans as I am in my own countrymen, supposed conservatives, who ought to know better.
Judge Bork was on Hannity today, and said this argument is hogwash. The Senate is entitled to set its own rules for the handling of nominees.
I respect him immensely, but I believe Judge Bork is wrong. The Senate IS required to perform its Advice and Consent function. It is not optional.
The logic of this is quite simple and inescapable. The President is required to fill these vacancies ("...he shall nominate, and ...shall appoint..."). Now, those who try to dissemble and deny that the Senate's role in this process is mandatory by asserting that Article 2, Section 2 does not specifically say "the Senate shall" fail to grasp (or more likely deliberately ignore) that this contingency is covered by the Senate members' Oaths of Office. Again, the logic is simple and clear. If the Senate fails or refuses to perform their Advice and Consent function, then they are preventing or obstructing the President from fulfilling his mandated duty. Obstructing a Constitutional Officer, e.g. the President, from carrying out his duty is itself a violation of the Constitution.
Furthermore, the phrase "Advice and Consent" in constitutional law means simply that the Senate must vote (or whatever other procedure they decide to use - they can read chicken entrails if they wish) to either approve to reject the President's nominee. That is ALL it means.
One other point needs to be addressed. Many people incorrectly use the term "Consent" by implying that it means that the Senate is commanded to "approve" the nomination. That is not the case. The phrase "Advice and Consent" is a term of art that in the accepted constitutional usage of 200 years means to vote. The Senate is free to either approve or reject the nominee. What they are not free to do is to avoid or refuse to participate in the process which the Constitution specifically outlines and requires, since by refusing to perform their Advice and Consent function in the Constitutionally mandated process for filling vacancies, they are, as stated above, obstructing another Constitutional Officer, the President, from fulfilling his constitutionally mandated duty.
THE CONSTITUTIONAL OPTION!
Well Linsey Graham and Saxby Chamblis tried to sue to have the Courts declare judicial filibusters unconstitutional. I don't think they won.
That part is not what I am talking about.
They probably aren't.
I was trying to restrict my comments to just the "advise and consent" part of the agreement. The Constitution does not allow the democratic spin, and these 7 RINO's that are agreeing with the dems doesn't make the constitution any different than it was yesterday.
The President does not need to advise with Congrees BEFORE
naming the judicial nomimees.
Thanks for the reminder of this; it's been years since I read it. Hamilton explains eloquently the emotional and political reasons, derived from human nature, upon which the wisdom of Article 2, Section 2 is based. All I did was distill it down to the simple basic logic of the actual text.
"The Constitution does not allow the democratic spin"
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Sure it does, the first amendment specifically allows them to spin all they want. That doesn't make them correct, but so.
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"The President does not need to advise with Congrees BEFORE
naming the judicial nomimees."
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Of course not but a Senate could decide to not confirm any nominee they are not consulted about. Consultation is a red herring issue here. Clinton consulted with Hatch BECAUSE THE GOP WAS IN THE MAJORITY. I assure you that Bush also consults with the MAJORITY. The Dims now want the president to consult with the MINORITY. That is a different issue.
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