Posted on 03/07/2003 9:08:02 PM PST by Pokey78
Edited on 04/23/2004 12:05:22 AM PDT by Jim Robinson. [history]
WASHINGTON--The plight of Miguel Estrada is a national disgrace. The confirmation to the D.C. Circuit of this highly talented lawyer is being aborted by a Democratic opposition bent on preventing the president and a majority of the Senate from staffing the federal courts as the Constitution requires. And the Democratic "spoiling" method--filibusters, as presently conducted and entrenched in Senate rules--are arguably in violation of the Constitution.
(Excerpt) Read more at opinionjournal.com ...
Then, if the Senate disapproves, it is within their power to impeach the judge at any time they like and thereby remove the judge from the office.
That raises the question, that if misbehaving Senators who do not like the judge, wish to "drag it out," then how long should they be permitted to constantly rail against a judge?
Well, the Senators are also stuck with the rule of law that justice be swift, and by their acts, they shall be known to the public for their literally obstructing justice --- on two occasions: upon the President's first request for consent, and now, when frankly, it becomes a political matter for the people to decide if they will support the misbehavior or "throw the bums out!"
First, there is nothing in the Constitution that precludes the Senate from adopting its own rules, and carrying them over. To bounce that would require the application of some broad brush concept like denial of a republican form of goverment, or the like by SCOTUS, and SCOTUS isn't going there, precipitating a Constitutional crisis.
Second, the tradition was there from the beginning, because the Senate never adopted a "move the previous question" rule, and thus no Senator could be stopped from talking per any vote. Yep, if one senator could go around the clock forever, he could stop a vote all by his lonesome. It would be heaven for a Ron Paul type. Only in 1917 was a cloture rule adopted which prescribed a two thirds vote, later dropped to 60 in the 1960's (except it requires a two thirds vote to change the cloture rule).
Finally, in fact the Senate does adopt rules in every new session, and until they adopt them, standard parliamentary rules apply, which means majority vote. In 1957 at the beginning of the session, the liberal Dems and lots of Pubbies plotted to move that the Senate adopt new rules, and Nixon was going to rule that standard parliamentary rules applied regarding the question of adopting new rules, since no rules were in effect. LBJ used his majority leader status to gain recognition, and moved to table the question of new rules, and was able to get a majority vote to do so because it was obscure enough not to be viewed as an anti civil rights vote, and LBJ bullied and cajoled, and got his way.
In short the author is wrong on all counts; he was just a chimp pounding the keys, mouthing off without knowledge.
Other than as stated above, I have no opinion on the matter.
If you're going to continue to assert that Washington set any such precedent as you describe, you'll need to be more specific about it if you expect to be taken seriously. Because as it is, there isn't a word in the Constitution that remotely suggests that the President has the right to set any deadlines or "assume" that consent has been given by default - especially when it comes to the judiciary branch, where the Senate is no less responsible for its proper function than the President is.
President Washington often times asked of the Congress, what would they recommend he do, and they often relied upon him to tell them what he would do.
That is one of the big reasons why they asked, even before his Presidency, that he preside over the construction of the Constitution.
I never said there was a controversy, as you put it; yet further, I don't remember chapter and verse.
And I don't have to make your life easier.
You asked for a reference. I gave you one from among some few really great ones; do the footwork; go to the Library of Congress. Make a study of it. Write the authoritative book. I might buy it.
Good day, sir or madam as the case may be.
That's not the issue. The issue is you being able to back up your assertions. If you make an assertion about the Constitution that isn't in any way supported by the letter or spirit thereof, nor supported by the professional literature (Findlaw says absolutely nothing about the principle you've described), the burden's on you to back it up, not upon anyone else to refute it further.
There are many facets of the proceedings of the three federal branches, which were quite literally decided by each branch daring to assert, what it would do in certain situations --- there is not a hard and fast barrier between the three branches in all matters. The powers that they have, are largely enumerated, but the procedures for many situations which occur between the branches, were left to the branches to figure out what they should and would do.
What was decided often relied upon He who dared; and that is still true. As previously stated, there are not hard and fast rules; instead, this stratosphere is largely affected by relative swings in political power over the years; and, who these personalities are; how much courage they have; and unfortunately, how deceptive some have been and probably will continue to be.
But again, the deliberation in the Senate, regarding consent, is their work to make a mess of or do well; but the conclusive decisions by the Senate, are cast by the Constitution in the winning, "democratic," statistic of a one vote margin, with the exception(s) also stated in the Constitution (impeachment).
The U.S. Senate has no power at all, to determine that the statistics shall be otherwise, to suit the Senators' sensitivity to popular polls or politics of the moment. Such aribrary and capricious variations would be a throwback to the injustice of regents' inconsistencies against which we had just fought a war.
It's a joint effort, this process of seeking the consent of the Senate, and George Washington did set the precedent by his dealings with the Senate . He was a gentleman about it, and initially, the Senate tried to be also, their respect for him was so great.
That justice shall be served, that the people shall enjoy the protections of the rule of law, that judicial decisions shall not "take forever," all require a time limitation, and that does mean that judgeships shall not remain unfulfilled. The Chief Executive, in the absence of the Senate's consent in a timely fashion, can swear in a judge of his or her choosing. Then, if the Senate objects, they can remove the judge. But in all their adventures, stated, they face the requirement that they have the political power of the people of the United States, backing their daring do.
Not every decision to be made and every situation that can be catalogued in this country, is up to one of the federal branches to take. There is a tremendous area at the juncture of the three branches that is not tortuously spilled as ink throughout some policy and procedures manual on some lawyers' or judges' desks, whereby such "legal experts" are left to decide all things not decided by the literal words of the Constitution.
Such matters were left to the people and their lawfully exercising their power to make known to their representatives, how to proceed.
I'll give you an example. If a despot became the President, and that tyrant was feted by the Congress, both the President and the Congress could be removed from office by the people of their respective States, through lawfully bringing pressure to bear upon their States' legislatures, to affect relief.
Well, that is something we do not think about on a day to day basis. But in terrible times, that power is the peoples' to bear down upon the lawless, as long as they bear down lawfully --- and lawfully is defined, as the people impressing the democratic-republican process.
That is the bottom line; where the power of the people is mustered.
This is but an example, of the many possible situations which involve procedures not displayed in the Constitution's words, but certainly cast in its foundations.
On various recorded occasions, the Supreme Court has taken decisions which set some procedures, but their having the end all be all final decision on all federal proceedings, is a myth, because they do not have that power cast in the Constitution. In fact, the Court early on saw an opportunity, and they took it.
But their daring is not in stone; instead, it remains to the victor's continuing to assert such authority, the other two branches bowing to the assertion, and the people presiding over and preserving the balance by way of the means lawfully at their disposal.
-The executive branch was arguably the most feared branch of government when the Constitution was written, being associated with royal privilege and all that. Accordingly, it was tightly limited in its powers, and I would think that the Founders intended for those limits to be rather strictly observed.
-According to Findlaw, the power of appointing officers was initially going to be vested in the Senate alone; the President was added as an afterthought. To attach to that a power on his part to force an approval out of the Senate seems quite a leap.
-It's one thing to state that there can be some give and take between the branches of government in cases where the wording of the Constitution is less than clear, but the wording of Article II seems very clear: He must have the Senate's consent for an appointment (By contrast, there's no such explicit requirement that either house of Congress decide matters by simple majority). I know of no principle of law where "consent" can be indicated by silence, except in cases where the law specifically provides for it. In fact, the Founders have demonstrated their willingness to make it clear when they intended for consent to have a time limit, as when they provided that bills submitted to the President for signature would become law if not acted upon within ten days. That adds all the greater weight to situations where they declined to make such a requirement.
By the way, do you recall if Washington actually managed to appoint an officer without a vote in the Senate, or did he merely assert the right to do so?
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.