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Specter to Shutdown Senate Over Judges:

Today's WSJ editorial page reports that Senator Arlen Specter is sufficiently upset with the slow pace of judicial confirmations that he plans to shut down the Senate if Democrats do not schedule more confirmation votes on President Bush's appellate nominees.

A look at the numbers explains why the ranking Republican on the Senate Judiciary Committee is spitting mad. In the last two years of Bill Clinton's Administration, when Mr. Specter was in the chairman's seat, the Republican-controlled Senate confirmed 15 appellate court nominees.

Now, more than halfway through Mr. Bush's final two years, Chairman Patrick Leahy isn't returning the Constitutional courtesy. The Democratic Senate has confirmed a mere six nominees with no plans in sight to move the remaining 11 forward. Judicial nominees rarely are confirmed in the final months of a President's second term, so the clock is running out. Democrats figure they'll retake the White House in November, and they don't mind leaving the courts short-handed for another year or two as they stall for liberal nominees. . . .

. . . "I sided with Clinton on his judges who were competent," Mr. Specter points out. After the judicial wars of the Bush years, this notion seems almost quaint.

Mr. Leahy has taken a far more partisan approach to his responsibilities as chairman, holding just one confirmation hearing since September. That was a hastily scheduled hearing for Fifth Circuit nominee Catharina Haynes on February 21 when the Senate was in recess. No Republican on Judiciary was in Washington at the time and Mr. Specter arranged for Senator John Warner from nearby Virginia to pinch-hit for him. Nor does Mr. Leahy appear to mind that, of the 11 appeals-court nominees awaiting Senate action, seven would fill seats deemed to be judicial emergencies. One-third of the 15 seats on the Fourth Circuit, covering Maryland, Virginia, West Virginia, South Carolina and North Carolina, are vacant.

This is further evidence of the downward spiral of politicization of the judicial confirmation process, as each side engages in escalating retaliation against the other for its perceived obstruction -- and there is no end in sight.

NI:
While it's true that two wrongs don't make a right, it's also true that the Republicans are hardly in a position to complain after the partisanship they displayed on most issues -- not just judges -- when they ran Congress. Did they really think the Democrats wouldn't re-take Congress eventually and that what went around would come around?

On the merits, there are enough right-wing extremists on the courts at present, thank you very much. There are worse ideas than stopping the bleeding.
4.2.2008 2:11pm
M (mail):
If the past is any guide to the future Specter will bluster and huff for a while and then do nothing at all. He's really one of the most all-talk people I've ever seen. (In this case I'm opposed to what he's huffing and puffing about, but really, does he ever actually do anything?)
4.2.2008 2:15pm
AntonK (mail):

...perceived obstruction.
That's pretty funny, Jonathan!
4.2.2008 2:22pm
Cornellian (mail):
I respect Specter. If he says there's a problem I'm at least open to arguments on the issue.
4.2.2008 2:23pm
titus32:
NI: I think you missed the point--according to Specter the Democrats are not returning the courtesy the Republican senate paid Clinton. Of course both parties have engaged in partisan behavior when in power, but apparently this latest round of escalation goes to the Democrats.
4.2.2008 2:24pm
Allan (mail):
My understanding is that the cause for this are some of the people nominated by President Bush (not necessarilly judges). He will not withdraw horrid nominees and he will not accept some of the nominations made by Democrats for various positions. It is all related.
4.2.2008 2:29pm
J. Noway (mail):
Why should any Senator from the opposition and majority party, be in any hurry to confirm a ''lame duck'' President's nominees?

Methinx ''thou dost protesteth too much...''.
4.2.2008 2:33pm
JRL:
"On the merits, there are enough right-wing extremists on the courts at present, thank you very much."

That's not an argument on the merits.
4.2.2008 2:39pm
Tyrone Slothrop (mail) (www):
the courtesy the Republican senate paid Clinton

This is a crock. Ask Elena Kagan, the dean of Harvard Law School, who was nominated for a seat on the D.C. Circuit in Clinton's last year and whose nomination never got moved. She is as qualified as they come. The notion that in 2000 Republicans acted in a bipartisan way on qualified nominees is as fatuous as it is self-serving.
4.2.2008 2:42pm
Alaska Jack (mail):
When I first started reading the VC years ago, Eugene invited readers to submit their ideas for constitutional amendments.

Mine was, simply, that if the Senate failed to act on a nominee in a reasonable amount of time, that nominee automatically became confirmed.

I based this on the fact that the Constitution gives the Senate the right to provide advice and consent; and by not doing so, the Senate was voluntarily waiving that right.

Also, bills that the president fails to sign eventually become law, so I thought it would make for a nice symmetry.

I don't think that the guys who designed the system anticipated the fact that the Senate might not vote yes or no, but instead would just refuse to vote at all. (Feel free to correct me on this point if I'm wrong.)

I still think it would be a good idea.

- Alaska Jack
4.2.2008 2:46pm
Philistine (mail):
Here is Leahy's Statement (3/3/08) where he (unsurprisingly) lays the blame at the feet of the Republicans.

One thing I found interesting--he claims (and I assume it is accurate) "19 current judicial vacancies -- almost half -- have no nominee."

Is there any particular reasons Bush is not nominating more Judges?
4.2.2008 2:49pm
The Drill SGT:
Nice Idea Jack,

isn't there that basis in English Common Law:


Silence gives consent
4.2.2008 2:49pm
The Drill SGT:

Is there any particular reasons Bush is not nominating more Judges?


So if the Dem's won't approve any more nominees, it's Bush's fault for not convincing other people to participate in a pointless meaningful exercise of public humiliation public service
4.2.2008 2:52pm
Dilan Esper (mail) (www):
I'm actually with Specter on the merits. I don't think that every time we have a Presidential election, the judicial confirmation process should slow to a crawl. That doesn't mean that the Democrats have to confirm all the judges, but they should apply the same standards to these nominees that they applied to earlier ones.

But the problem is, as everyone noted, this is what always seems to happen, whether Republicans or Democrats are in control. It's the type of thing that is reflective of the bipartisan distrust in Congress; you could solve this via an informal agreement that neither side will use these tactics, but neither side trusts the other to honor such an agreement.
4.2.2008 2:54pm
Smokey:
Allan:
President Bush... will not accept some of the nominations made by Democrats for various positions.
There's an excellent reason: the inept and bumbling Democrat Norman Mineta was appointed to the Cabinet. Now granny can't take fingernail clippers on her next trip.


Some facts on Senator Leahy:

Sen. Leahy was annoyed with the Reagan administration's war on terrorism in the 1980s. At the time he was vice chairman of the Senate Intelligence Committee.

* "Leaky Leahy," allegedly threatened to sabotage classified strategies he didn't like.

* Leahy 'inadvertently' disclosed a top-secret communications intercept during a 1985 television interview.

* The intercept had made possible the capture of the Arab terrorists who hijacked the cruise ship Achille Lauro and murdered American citizens. The reports cost the life of at least one Egyptian operative involved in the operation.

* In July 1987, it was reported that Leahy leaked secret information about a 1986 covert operation planned by the Reagan administration to topple Libya's Moammar Gaddhafi.

* U.S. intelligence officials said Leahy, along with the Republican panel chairman, sent a written threat to expose the operation directly to then-CIA Director William Casey.

* Weeks later, news of the secret plan turned up in the Washington Post, causing the plan to be aborted.

* A year later, as the Senate was preparing to hold hearings on the Iran-Contra scandal, Leahy had to resign his Intelligence Committee post, after he was caught leaking secret information to a reporter. [source]

Is there any doubt that Leahy deliberately sold out his country for partisan political purposes? Or that Cheney's response to Leahy was the right one?
4.2.2008 2:55pm
Philistine (mail):

So if the Dem's won't approve any more nominees, it's Bush's fault for not convincing other people to participate in a pointless meaningful exercise of public humiliation public service



It's my understanding that vacancies have outnumbered nominations even prior to the Democratic takeover of the Senate.
4.2.2008 2:55pm
byomtov (mail):
As Tyrone Slothrop suggests, you have to go beyond the raw numbers to decide who is being "obstructionist." If the Senate won't confirm Bush's nominees perhaps he is the obstructionist for putting forth unacceptable choices. Why the blame, if there is any, should fall on the Senate is not clear.

Nor is it sufficient to argue that Clinton's nominees fared better. It is worth asking whether they were as partisan as Bush's. If not, that's probably a better explanation than the WSJ's reflexive accusations against Democrats and claims of sainthood for Republicans.
4.2.2008 2:56pm
Keith in Dallas (mail):

My understanding is that the cause for this are some of the people nominated by President Bush (not necessarilly judges). He will not withdraw horrid nominees


Well, if the nominees are objectively unqualified, let them be put to a vote and allow the confirmation process to run its course.


Why should any Senator from the opposition and majority party, be in any hurry to confirm a ''lame duck'' President's nominees?


Just practically speaking, the federal bench is extremely taxed and leaving seats unfilled for prolonged periods harms litigants. It would be quite petty to withhold a vote on a judge simply because you didn't agree with his ideology, knowing that to do so would harm real citizens.


Ask Elena Kagan, the dean of Harvard Law School, who was nominated for a seat on the D.C. Circuit in Clinton's last year and whose nomination never got moved. She is as qualified as they come.


I don't recall seeing anyone saying that the Republicans moved to quickly confirm EVERY Clinton nominee. But simply looking at the numbers, it is clear that the Democrats' stance on judicial nominations is rather petulant and self-serving. I'm sure the Republicans could have comported themselves more appropriately in Clinton's lame duck time, but it should be obvious that the Democrats' behavior here is pretty indefensible.
4.2.2008 2:57pm
Seamus (mail):
I based this on the fact that the Constitution gives the Senate the right to provide advice and consent; and by not doing so, the Senate was voluntarily waiving that right.

You need to re-read what the Constitution actually says. Article II, section 2, clause 2 *requires* the advice and consent of the Senate for presidential appointments of "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 whall be established by Law." It doesn't just give the Senate the option, which it may waive, of providing such advice and consent.
4.2.2008 3:01pm
M.L. Harris:
byomtov,
If the Senate won't confirm Bush's nominees perhaps he is the obstructionist for putting forth unacceptable choices.

"Unacceptable" should be defined as nominees who fail to win conformation on a full-floor vote. This can't happen when nominees aren't even scheduled. BTW, I level this criticism at both sides.
4.2.2008 3:05pm
Kevin Lynch (mail):
Why should any Senator from the opposition and majority party, be in any hurry to confirm a ''lame duck'' President's nominees?

How far are you prepared to take that argument? Because of the constitutionally imposed term limit EVERY President is a lame duck, from day 1! Would the Senate be justified in refusing to vote on ANY nominees for ANY position at ANY time using the lame duck argument?

And how about the counter question? Does the failure of the majority party to move any nominations forward justify attempts by the minority party to crush forward progress on every other legislative front? After all, why should the minority party be in any hurry to see the legislative priorities of the majority party be enacted?

The whole refusal to move nominees, by either party, for partisan reasons is wholly inappropriate for a legislative body that regularly declares itself the "greatest deliberative body" in the world. If these nominees are really so "objectively unqualified", their nominations will be soundly defeated in the voting. If not, the real motivations for opposing them might have to come to light ... perhaps they'll be good reasons, perhaps not, but at least the voters will be able to take that information into account on election day.
4.2.2008 3:05pm
The Drill SGT:

Nor is it sufficient to argue that Clinton's nominees fared better. It is worth asking whether they were as partisan as Bush's.

Isn't the simple proof of the error in this claim, the comparison of:

Ginsburg, who by any measure was a more partisan pick, at 96-3

Roberts, whose vote was 78-22
4.2.2008 3:06pm
mga (mail):
Justice Scalia spoke at the St. Louis Law Day two years ago. He argued that, when one attempts to remove fundamentally political decisions from the legislature to the courts, the politics comes out in the judicial confirmation process.

I think he's absolutely right. The reason the politics of confirmation is getting worse is that the Supreme Court has asserted increasing power from matters as great as abortion or the winner of the presidential election to as trivial as the meaning of golf.
4.2.2008 3:07pm
Smokey:
The Senate's Constitutional duty is to vote nominees up or down.
"Consent" = vote. The Senate majority is shirking its duty.
4.2.2008 3:08pm
Goober (mail):
I remain agnostic on the rest of this debate, but "shutdown" is not a verb.
4.2.2008 3:08pm
M.L. Harris:
make that confermation, sorry.
4.2.2008 3:10pm
titus32:
From Tyrone: The notion that in 2000 Republicans acted in a bipartisan way on qualified nominees is as fatuous as it is self-serving.

Again, missing the point, and creating a straw man. You're not addressing Specter's specific gripe, and no one is saying generally that 2000 Republicans acted in a bipartisan way. This is how escalation happens--both sides one up the other.
4.2.2008 3:11pm
Oren:
Is there any doubt that Leahy deliberately sold out his country for partisan political purposes?
Either that or to prevent a few foreign policy disasters. I'm perfectly content to have him sell out the administration to save the country at large.
4.2.2008 3:21pm
Justin (mail):
"Ginsburg, who by any measure was a more partisan pick."

Shenanigans. Ginsberg was selected by the advice of Senator Hatch, a then-highly partisan Republican who chaired the Senate Judiciary committee. Ginsberg was chosen only when Republicans made clear that they would never accept Bruce Babbitt, a highly qualified choice Which partisan Democrat specifically offered John Roberts as a compromise choice?
4.2.2008 3:23pm
Dilan Esper (mail) (www):
What Justin said. A lot of conservatives have rewritten history and claim that because Ginsburg was an ACLU lawyer, she was obviously on the far left. In fact, Ginsburg was broadly acceptable to conservatives because on a lot of issues (granted, issues that get less play like statutory construction and business cases), she will and does vote with the conservatives. Same with Breyer.

If you compare the jurisprudence of Ginsburg to, say, William O. Douglas, or even Brandeis or Brennan, you can see that she is not really that far left, in historical terms, for a Supreme Court justice.
4.2.2008 3:30pm
Oren:
Dilan, your emphasis on "historical terms" is making it difficult to gradually move the goalposts to the right. Quit it already.
4.2.2008 3:37pm
Tyrone Slothrop (mail) (www):
You're not addressing Specter's specific gripe, and no one is saying generally that 2000 Republicans acted in a bipartisan way. This is how escalation happens--both sides one up the other.

Spector says he sided with Clinton on his nominees who were "competent." I don't know what Spector's position was on Kagan, but she was competent and she didn't get a vote. So the notion that there is "escalation" here seems dubious at best.
4.2.2008 3:38pm
rarango (mail):
Discussions on this thread appear to mirror the partisan divide in the senate. Most of the comments reflect a relatively near-term of partisanship. There is, of course. a long history of partisanship, so debates about who started it first should probably start with First John Adam's administration and dont add much of substance to the conversation.

Fortunately, Senator Obama's election to President will put a stop to all this juvenile, name-calling bickering, unite us all to achieve a greater level of transcendence, and achieve one with the great pumpkin. Or not.
4.2.2008 3:38pm
Alaska Jack (mail):
Seamus -

Er, given that my suggestion was given in the context of a suggested amendment to the constitution, I think it's pretty clear that I am not suggesting the constitution allows this NOW. Allowing it would be the purpose of the amendment.

And even if you disregard that, you still have the problem (which Smokey alludes to, above) of defining what exactly it means to "require" something. I agree that the constitution seems to require that the Senate perform this "advice and consent" function. But if it doesn't, what then? Am I really "requiring" you to do something if I cannot compel compliance, and provide no consequence or penalty for noncompliance?

The framers obviously anticipated that a scenario might arise in which the president refused to sign a bill. As I said before, I think they simply overlooked the possibility that the Senate might do the equivalent, and provided no mechanism to offset this. This suggests to me that an amendment might be in order.

- Alaska Jack
4.2.2008 3:47pm
Hutz:
The Constitution does not set forth specific rules for how the Senate expresses its advice and consent. There is nothing magical about an "up or down vote," or, for that matter, a strict "majority rules" standard for legislative activity. The Senate acts (or doesn't act) through whatever parliamentary or other rules governing the means by which this entity acts. Best of luck with the constitutional amendment, Alaska Jack, but it is nice to see that someone concedes that today's Constitution does not require the Senate to vote on nominees.

If it hasn't consented, it hasn't consented. That's it.
4.2.2008 3:47pm
PLR:
The Democrats should allow the nominees to have a hearing and a vote, and then vote them down. Senator Specter would be satisfied, and the Democratic Senators will have proven themselves to be more magnanimous than the Clinton-era GOP Senators.
4.2.2008 3:49pm
titus32:
So the notion that there is "escalation" here seems dubious at best.

As I read the post (and I don't know how else to read it), the escalation is about the numbers. 15 in two years (Republicans) versus 6 plus perhaps zero in two years(Democrats). Obviously, the Democrats could rebut this by moving forward on the 11 nominees pending--Specter believes they're not going to do this though.
4.2.2008 3:54pm
byomtov (mail):
no one is saying generally that 2000 Republicans acted in a bipartisan way. This is how escalation happens--both sides one up the other.

Maybe the WSJ is:

Chairman Patrick Leahy isn't returning the Constitutional courtesy.

This is how escalation happens--both sides one up the other.

So your solution is for the Democrats to unilaterally disarm?
4.2.2008 4:01pm
Tyrone Slothrop (mail) (www):
the escalation is about the numbers

Not even Specter can argue with a straight face that you can only look at the numbers:


"I sided with Clinton on his judges who were competent," Mr. Specter points out.
4.2.2008 4:01pm
Alaska Jack (mail):
I'm with Rarango. I've worked in politics, and find it hilarious that people always think that their guys are the true, noble and virtuous ones; and the other guys are a bunch of vicious, partisan ideologues.

The only allowance I will make is the observation made by MGA, above, and many others: That the size and scope of government today means the stakes are higher then they've been in times past. So I guess I could blame FDR, LBJ etc., but that seems kind of pointless.

- Alaska Jack
4.2.2008 4:04pm
stanneus :
A plague on both Dems &Repubs for helping undermine both judicial independence and the public's corresponding faith that our judiciary is neutral and open-minded.

Confirmation hearings have become opportunities for gassy speeches and pointed queries about a nominee's position on controversial issues, something appropriate for electoral candidates, not for an executive's nominee to the bench.

Everything inside and outside hearing room has the aroma of a political campaign. Constituencies that feel either imperiled or encouraged by the nominees' past and projected rulings step forward to make it pellucidly clear that they deem each Senator's vote a political loyalty oath. Millions are spent on advertisements for and against the nominee. Interest groups use the occasion to send out a blizzard of fund raising mail, hectoring the electorate with predictions that the vote on the nominee places the very existence of our Republic at stake.

The discourse and dynamic of the elective and appointive arenas have thus become the same. The next logical step would be to dispense with the posturing Senatorial middlemen and amend the Constitution to have federal judges elected. Judicial candidates could then go off on the hustings and make open promises to the electorate on how they would rule on specific issues. That would at least have the virtue of dispensing with the hypocritical minuet we've been witnessing for years.
4.2.2008 4:09pm
Dave N (mail):
Fortunately, Senator Obama's election to President will put a stop to all this juvenile, name-calling bickering, unite us all to achieve a greater level of transcendence, and achieve one with the great pumpkin. Or not.
Well put, Rarango.

Here is my quick prediction. Those on the left who cheered mightily at the use of the filibuster against President Bush's nominees will scream the loudest when the same tactics are used against President Obama's. And these same screamers will accuse Republicans of hypocrisy for returning the favor.

My suggestion is this, since all of the potential nominees are members of the Senate: Jointly propose a Senate rule, to take effect on January 1, 2009, that judicial nominees be entitled to a confirmation hearing within a reasonable amount of time and that the Senate be required to vote on the nomination following committee action within a time certain thereafter. No filibusters. No blue slips (except perhaps for a Senator to oppose a nominee for a seat from that Senator's state).

This way, President Obama or President McCain (or even, theoretically, President Clinton) would know that his nominees would get an up-or-down vote by the full Senate.

My proposal is reasonable. Therefore, I predict it will go about as far as an ice cube in Hades. In other words, I am not holding my breath.
4.2.2008 4:10pm
Thales (mail) (www):
"You need to re-read what the Constitution actually says. Article II, section 2, clause 2 *requires* the advice and consent of the Senate for presidential appointments of "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 whall be established by Law." It doesn't just give the Senate the option, which it may waive, of providing such advice and consent."

Yes, but this "requirement" is a limitation on the powers of the President (which is why it is in Article II), such that he can't willy-nilly appoint judges and ministers--the requirement is that he submit the nominees to the Senate, and is a check and balance. Article I clearly gives the houses of Congress the authority to create their own rules of procedure, whence the filibuster, voice votes, committees, etc. So Congress can set the terms of how it considers the President's nominees, it seems to me, without the President having much say in the matter, and including its own timetable. Indeed, Congress establishes the entire court system below the Supreme Court, and can abolish the inferior courts if it wishes. As far as partisanship goes, both the GOP and Dems have in recent years "obstructed" the process in various ways, the GOP through not letting nominees leave committee, the Dems by threatened filibuster. However, the principal remedy for this in real life is political: if you don't like the process, elect people who will vote to change the rules.
4.2.2008 4:19pm
Revisit:
Arlen still alive? I thought humans don't live that long.
4.2.2008 4:31pm
Houston Lawyer:
The Democrats have for decades depended on the Supreme Court to make constitutional rulings on matters that they couldn't get legislation passed on. I don't blame the Democrats for this, I blame the Supreme Court itself. Congress and the President are not to blame for the fact that the Supreme Court just makes up law as it goes along and acts as a super legislature and executive all in one.
4.2.2008 4:38pm
Hutz:
As a committed moderate who vehemently disagrees with both parties on most issues, I am grateful for the wonderfully messy politics that forces either gridlock or compromise on grave choices.

The Framers knew enough to fear the unchecked majoritarianism that many of the short-sighted commenters are now insisting should be the rule. (And don't say that elections are the check -- you'd be right, but elections are sufficiently infrequent that you need interim checks. If the application of those interim checks is sufficiently disfavored by the electorate, a correction will be made.)
4.2.2008 4:40pm
Soronel Haetir (mail):
Alaska Jack,

I have a different idea on these positions. I would love to see all positions currently filled through election or appointment changed to allotment by lottory. Especially legislative positions, there is nothing I can see that would be more helpful than filling those positions with people who aren't self-selected for their deal-making ability.

Even better would be to base compensation on inaction, each official action reducing compensation.
4.2.2008 4:45pm
CJColucci:
There are several vacancies on the federal bench in NY, even after a few recent confirmations. Not one of those, last I looked, even has a nominee, although one or the other of the Senators, as Senators do, have put some names forward.
4.2.2008 4:54pm
titus32:
Byomtov, I think the WSJ's comment is limited to the specific issue of number of confirmations in the last two years of a president's term when the opposing party controls the Senate. If the WSJ were saying that the 2000 senate Republicans were bipartisan in general when it came to judges, I would disagree with the WSJ.

If we care about escalation (and from the comments here, obviously many people don't, at least when their side is on top), the limited solution would be for the Democrats to start the confirmation process for (as least most of) the 11 nominees. Soon they will most likely have total control and can start stocking the courts themselves. I admit that I don't see a real incentive for this though -- I doubt any current Democratic senator will care about what happens the next time the Republicans are in power.
4.2.2008 4:55pm
byomtov (mail):
If we care about escalation (and from the comments here, obviously many people don't, at least when their side is on top), the limited solution would be for the Democrats to start the confirmation process for (as least most of) the 11 nominees.

Or for Bush to consult with the Democrats and try to agree on acceptable nominees. Again, the position of critics of the Senate is that it is only the Senate's obstructionism that keeps these positions unfilled, and that Bush has no responsibility to put forth acceptable nominees.

That doesn't hold water. When Republicans controlled Congress, we repeatedly heard, "elections have consequences." Well, the 2006 elections have consequences. They include giving Democrats to a stronger voice than before in the selction of judges.
4.2.2008 5:07pm
titus32:
Byomtov, I hear you, and that's why I included the "at least most of." What you say makes sense as an abstract proposition, but unfortunately it's rather indeterminate in practice--in other words, what is "acceptable" is in the eye of the beholder. That's one reason why--historically--the President has been given some deference in his appointments. That said, I realize that some horse trading has occurred (e.g., some of Clinton's 9th Circuit nominations) and Bush should not be inflexible.
4.2.2008 5:21pm
q:

Or for Bush to consult with the Democrats and try to agree on acceptable nominees.

"Acceptable" should be defined as what the Senate as a whole feels about the nominee, and not simply what a subset of Senators feel. It's impossible to objectively state that the current nominees are "unacceptable" without a yes/no vote put to the floor.
4.2.2008 5:38pm
Dan Hamilton:

That doesn't hold water. When Republicans controlled Congress, we repeatedly heard, "elections have consequences." Well, the 2006 elections have consequences. They include giving Democrats to a stronger voice than before in the selction of judges.


What you are ignoring is that the Democrats HAVE the power to FORCE Bush to provide other Judges. It is called Vote the current selection down. Bush has NO requirement to get with the Democrats to select Judges. BUT the Democrats DO HAVE a REQUIREMENT to Advise and Consent. That means VOTE. They can vote them UP or DOWN it doesn't matter. The Democrats are obstructing because they don't want to VOTE. Because enough Democrats would vote to pass the Judges. To stop this the Democrats are refusing to Vote. THAT IS WRONG.

The Democrats can vote down every one of the judges. That would be fine. It would give the Republicans a great issue for the Fall. That is another reason the Democrats wil not Vote on the judges. They think it is smart POLITICS. Yes and they thought that having Obama and Hillery both running was a good idea too.
4.2.2008 5:40pm
BChurch (mail):
IIRC, the reason that fewer nominations were contested in Clinton's presidency (and every time before Bush's) is that back then, Clinton's proposed nominees could be defeated by a single Senator from that nominee's home state (failing to return a "blueslip"). This meant Clinton (and previous presidents) were forced to moderation at least in some degree, meaning the nominees eventually proposed had a higher chance for success. Republicans abolished the blue slip law around 2000, meaning that refusing to allow an "up or down vote" is the primary means by which to stall a nominee. Same end result, just a different and more open procedure.
4.2.2008 5:49pm
KeithK (mail):

The framers obviously anticipated that a scenario might arise in which the president refused to sign a bill. As I said before, I think they simply overlooked the possibility that the Senate might do the equivalent, and provided no mechanism to offset this. This suggests to me that an amendment might be in order.


I think the Framers did anticipate lack of action on presidential appointments. That's why they included a provision for recess appointments. It's more effective for executive appointments because the limited term of recess appointments is closer to the regular term of service. But I doubt they gave too much thought to fights over the federal judiciary considering it's size in the 18th century.
4.2.2008 5:49pm
Dave N (mail):
BChurch,

You are quite wrong about "blueslips" being abolished. Most recently and publicly, Senator Diane Feinstein blueslipped N. Randy Smith when he was nominated for the 9th Circuit. Sen. Feinstein contended that the seat "belonged" to California even though the judge who held it, Stephen Trott, kept his chambers in Boise, Idaho.

President Bush ultimately withdrew Smith's nomination for the Trott seat and nominated him, instead, for the seat held by Thomas Nelson, who also was based in Idaho and who took senior status subsequent to Judge Trott. Senator Feinstein did not oppose Smith's nomination for an "Idaho" seat and he was confirmed 94-0.
4.2.2008 6:01pm
Hutz:
Would someone please explain where in Article II it says that the Senate is required to vote on nominees? Seriously.
4.2.2008 6:48pm
Gilbert (mail):
@J. Noway, Kevin Lynch

"Lame duck" used to be a technical term referring to the period between the presidential election and the day the old President stepped down. The press has been quite inaccurately calling Bush a "lame duck" for 3 years now.

Which leads to my second point -- the Bush administration might have a less legitimate complaint if (and I don't have the statistics) it is politically less popular than Clinton's. Congress would feel less obligated to honor the nominations because, far from paying a price for being "obstructionist," there might actually be political capital there.

This seems even more important in a system where the President is elected to a fixed term. Why should he care, after being re-elected, whether he acts according to popular will, unless he is going to suffer politically. Since we don't have a parliamentary system where he can be removed at will by the legislature (yet, but see the Clinton impeachment) I am almost comfortable with the idea that Sen. Lehey is opposing the nominations purely on ideological grounds -- its the political free market, let the chips fall where they may.
4.2.2008 6:53pm
byomtov (mail):
BUT the Democrats DO HAVE a REQUIREMENT to Advise and Consent. That means VOTE.

Huh. Since I'm not a Constitutional scholar, I'll ask someone who might know. What about Orrin Hatch? Surely Orrin Hatch would know, yet he didn't feel compelled to give all Clinton's nominees a vote. Maybe there's something wrong with your theory.

Maybe you could show me where in the Constitution it says they have to vote.

The fact is that, however many words you capitalize, they don't have to vote. They never did have to, and blocking a vote has been used for a long time as a way to stop nominees.
4.2.2008 6:56pm
Dilan Esper (mail) (www):
Bush has NO requirement to get with the Democrats to select Judges. BUT the Democrats DO HAVE a REQUIREMENT to Advise and Consent.

Am I the only one who found this unintentionally hilarious? The vote is the "consent"; I get this. But the "advice"... hmm, what does that mean? Perhaps that the framers intended that the President consult with the Senate before appointing judges? Naah, couldn't mean that, could it?
4.2.2008 6:59pm
Oren:
Goober, no .
4.2.2008 7:17pm
Oren:
My suggestion is this [snip] that the Senate be required to vote on the nomination following committee action within a time certain thereafter.
This is a recipe for more extreme judges, not less. Requiring 60 votes instead of 50 can (mathematically) only lead to more moderates being confirmed.
4.2.2008 7:23pm
cboldt (mail):
-- Would someone please explain where in Article II it says that the Senate is required to vote on nominees? --
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Obviously, it doesn't. The Constitution also doesn't say the Senate MUST conduct an impeachment trial on articles of impeachment, only that it has the power to. The Constitution doesn't say the Senate has to provide advice and consent relating to the executive cabinet either, or even that it has to consider ANY legislation sent to it by the House.
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But that sort of construction of the Constitution represents the Senate as a dysfunctional or obstructionist body, not a deliberative and decision-making body. The only way I see the Senate having sway to conduct the current common practice of pocket rejection of the nomination of an inferior officer (i.e., so that it's own rules -- that now provide for 60 votes for a nominee to get consideration, but could well be changed w/o Constitutional amendment to be 67, or 75, or 90, or unanimity -- establish the hurdle) is that the fact of presidential nomination and Senate confirmation of Circuit Court judges is established by statute (e.g. 28 USC 44), and not by the Constitution. The statute could be changed to vest the appointment power with the Supreme Court, or in the president without a call for advice and consent.

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What the Constitution DOESN'T permit is the appointment of judges by the Senate, or the House. And that is the sort of influence the Senate is asserting with its (IMO) bogus "we make rules of procedure, and it takes 60 votes to confirm a judge" position.

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As long as the Senate is, by statute, empowered to render a binding opinion, and while absence of that interferes with the expected working of the government, it ought to do so. Vote the objectionable nominees down.
4.2.2008 7:25pm
Oren:
Would someone please explain where in Article II it says that the Senate is required to vote on nominees? Seriously.
If you would read carefully there are two schools of thought on the matter (both of which I think are bad ideas):

(1) The Senate can adopt parliamentary rules requiring the SML to bring nominees to a vote that effects cloture. This would require a super-majority of Senators but might* be modified with a bare majority at the beginning of the next term.

(2) Art I can be amended.

*This depends on how you read the "nuclear" option in which a bare majority of the Senate dispenses with the cloture rule to effect a change of the Senate rules regarded cloture. That subject could fill books and is way off-topic here.
4.2.2008 7:29pm
cboldt (mail):
KeithK: -- I think the Framers did anticipate lack of action on presidential appointments. That's why they included a provision for recess appointments. --

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At the time of the framing, Congress met, starting in December, for a short session. Most of the year the Congress was out of session, so it would be common for a vacancy to occur when there was nobody around to do the advice and consent thing.

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A read of the Constitution shows recess appointment power to apply in the case of vacancies that HAPPEN during the recess, not that pre-exist a recess.

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I think the framers expected the various organs of government to function, and in the arena of confirmations, the Senate is totally and arrogantly dysfunctional.
4.2.2008 7:33pm
Oren:
As long as the Senate is, by statute, empowered to render a binding opinion, and while absence of that interferes with the expected working of the government, it ought to do so.
One could say the same about Bush's failure to nominate acceptable officials to many of the regulatory bodies (a factor that no doubt incenses the Senate against him). As of now, the FEC, CPSC, CSHIB, NLRB and countless others are unable to form a quorum.
4.2.2008 7:34pm
Oren:
What the Constitution DOESN'T permit is the appointment of judges by the Senate.
It also doesn't permit appointment of judges unacceptable to the Senate. It's quite unfortunate that it requires that two branches actually work with each other to find mutually acceptable nominees.

And that is the sort of influence the Senate is asserting with its (IMO) bogus "we make rules of procedure, and it takes 60 votes to confirm a judge" position.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
Yeah, "bogus", whatever.
4.2.2008 7:37pm
Soronel Haetir (mail):
As I recall, this was discussed in the Deferalist (don't recall which number) where the Senate was warned about rejecting qualified people because nothing would prevent the president from submitting an even less acceptable canidate.
4.2.2008 7:38pm
BGates:
But that sort of construction of the Constitution represents the Senate as a dysfunctional or obstructionist body, not a deliberative and decision-making body.
So that sort of construction would have the advantage of being accurate, then.
4.2.2008 7:40pm
Oren:
As I recall, this was discussed in the Deferalist (don't recall which number) where the Senate was warned about rejecting qualified people because nothing would prevent the president from submitting an even less acceptable canidate.
For regulatory boards with 8 year terms, it makes sense to wait till January and have Obama appoint someone they can stomach. The longer Bush drags this nonsense out the less influence he can have (through his nominees) after he leaves office.
4.2.2008 7:44pm
cboldt (mail):
-- Yeah, "bogus", whatever. --

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Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.


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Where the activity in question is purely legislative, I agree -- the Senate can make whatever rule it wants. And as I noted above, the Congress has the power to vest the appointment of Circuit and District Court judges with the president (w/o a need for advice and consent), or with the courts.

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But where the activity in question is not purely legislative, e.g., participation in selection of Supreme Court judges, conducing impeachment trials, reviewing and rendering advice and consent on international treaties, the Senate ought to adhere to the balance of power envisioned by the Constitution. I think the Senate is asserting a power to appoint (select) judges that exceeds the degree of power (for that function) that the Constitution expresses.

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OTOH, it's not judiciable, and they are getting away with it (as a body) -- and a substantial fraction of the public is hunky dory with it, you for example.

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I'm not surprised at all that the modern Democrat party was the first to abuse cloture as a matter of routine against judicial nominees.

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Yes. I'm aware of the Fortas precedent.
4.2.2008 7:49pm
Oren:
I think the framers expected the various organs of government to function, and in the arena of confirmations, the Senate is totally and arrogantly dysfunctional.
As opposed to the President who is being perfectly reasonable in expecting the Senate to forgo the advice part and just consent to whomever he pleases?

Bradbury for OLC? Is he ****ing crazy?
4.2.2008 7:50pm
cboldt (mail):
-- It [the Constitution] also doesn't permit appointment of judges unacceptable to the Senate. --

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Yes it does, actually. The barrier isn't the Constitution, but 28 USC which embodies the advice and consent function for Circuit and District Court judges.

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Congress could, by statue, vest the appointment power (sans advice and consent) with the president or the courts -- and in that situation would inevitably face an appointment it found unacceptable. There's a remedy for that too, called impeachment.
4.2.2008 7:53pm
Oren:
But where the activity in question is not purely legislative, e.g., participation in selection of Supreme Court judges, conducing impeachment trials, reviewing and rendering advice and consent on international treaties, the Senate ought to adhere to the balance of power envisioned by the Constitution.
I understand your point but I cannot fathom how this would work. Are you seriously suggesting that some outside body impose procedural rules for Senatorial consideration of these "non-legislative" activities? How the hell would that actually work (and how the hell are you going to square it with ArtIS5)?

I think the Senate is asserting a power to appoint (select) judges that exceeds the degree of power (for that function) that the Constitution expresses.
They've asserted no such thing. I think you have misunderstood the grammar of the "advise and consent" clause altogether. It is a positive construction, meaning the President can only do so *with* the consent of the Senate not a negative construction, the President can do so only *absent* the objection of the Senate. It follows from this grammar that default state of a Presidential nominee is 'unconsented-to' until some affirmative action takes place that signifies the Senate's consent.
4.2.2008 7:57pm
Oren:
Congress could, by statue, vest the appointment power (sans advice and consent) with the president or the courts -- and in that situation would inevitably face an appointment it found unacceptable. There's a remedy for that too, called impeachment.
They could also raise the bar to 3/4 for advice and consent. If you don't like what they are doing, you are welcome to vote for someone else.
4.2.2008 7:58pm
cboldt (mail):
-- As opposed to the President who is being perfectly reasonable in expecting the Senate to forgo the advice part and just consent to whomever he pleases? --

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They are forgoing expressing a formal opinion, since they prefer to cut every issue in multiple directions so as to be able to bamboozle the voters.

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They could, in the alternative, reject the nominees they find objectionable -- the quicker the better.

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I'm not apologizing for Bush or his picks, but the Senate deserves every bit of the criticism it gets in the area of confirmations. It has been screwing that up for a long time.
4.2.2008 8:01pm
cboldt (mail):
-- They could also raise the bar to 3/4 for advice and consent. --

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I said the same thing above. Not that I think doing so would be in harmony with the balance of power the Constitution expresses, but as long as one holds the view that the Senate can pick and choose nominees via setting bar high enough, they could set the bar at unanimity and call it a "rule of procedure."

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Doesn't make it so, and doesn't prevent people from arguing it is.

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Goes around, comes around. Cheers.
4.2.2008 8:04pm
Oren:
Not that I think doing so would be in harmony with the balance of power the Constitution expresses, but as long as one holds the view that the Senate can pick and choose nominees via setting bar high enough, they could set the bar at unanimity and call it a "rule of procedure."
If it's a balance-of-power issue then I have no idea how you intend to remedy it without consent of the Senate. Please explain how we can fix this . . .
4.2.2008 8:11pm
cboldt (mail):
cboldt: I think the Senate is asserting a power to appoint (select) judges that exceeds the degree of power (for that function) that the Constitution expresses.

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Oren: -- They've asserted no such thing. --

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Not directly, with words. But blue slips and 60 votes hurdles shift the power of selection from one entity (the president) toward another (the Senate).

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Are they formally the "selecting agent?" No. Absolutely not. Are they insisting on deliberating only when their offerings are nominated by the president? Yep, in the case of the 4th Circuit. Will they get away with it? Highly likely.

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It won't be the first or only time the government acts in a way that I think is outside the Constitution.
4.2.2008 8:11pm
cboldt (mail):
-- Please explain how we can fix this --

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I honestly think it's beyond repair. See for example how many educated people thing the Constitution requires advice and consent for Circuit and District Court nominees, and the gang of 14 insisting its version of "advice and consent" as a means of aggrandizing power to the Senate.

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So, the fix is as I said, "goes around, comes around." Politicize EVERYTHING.
4.2.2008 8:17pm
Oren:
They could, in the alternative, reject the nominees they find objectionable -- the quicker the better.
NO!!!, you missed the grammatical structure of a&c - it's a positive construction. The President is the one that needs to get affirmative consent from Senate. There is absolutely no possible notion of "rejecting" a nominee, there are only nominees that have not been consented to (the default) and those that have been consented to (as a result of affirmative action to consent on the part of the Senate).
4.2.2008 8:18pm
Crimso:

Either that or to prevent a few foreign policy disasters. I'm perfectly content to have him sell out the administration to save the country at large.

Except, of course, it is in no way his responsibility or privilege to do so. If he wants to control foreign policy, let him get elected POTUS. Or stage a coup.
4.2.2008 8:19pm
Oren:
But blue slips and 60 votes hurdles shift the power of selection from one entity (the president) toward another (the Senate).
I always considered the power to be jointly held. This is perhaps why we disagree so thoroughly.
4.2.2008 8:19pm
Oren:
Except, of course, it is in no way his responsibility or privilege to do so. If he wants to control foreign policy, let him get elected POTUS. Or stage a coup.
It is every citizen's affirmative responsibility to take action to prevent harm from coming to the Union. This is far off-topic at any rate.
4.2.2008 8:21pm
Oren:
and the gang of 14 insisting its version of "advice and consent" as a means of aggrandizing power to the Senate.
I don't think that position makes any sense. Let me break down my logic and hopefully we can find the precise point of disagreement.

The Senate, as a body is empowered to a&c to Presidential nominees. This implies that the Senate must decide what constitutes a valid grant of consent because the alternative is the Alice-in-Wonderland scenario where the Senate has the power to consent but some other mysterious party (yet to be named) has the power to define what constitutes that consent.
4.2.2008 8:26pm
cboldt (mail):
NO!!!, you missed the grammatical structure of a&c - it's a positive construction. The President is the one that needs to get affirmative consent from Senate.

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You're perhaps missing the point of my statements. I don't disagree as to what A&C means, it's a necessary precondition to appointment when the process is "nominate, then A&C, and only if positive A&C, appoint."

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I'll restate my point. The net effect of the Senate saying it needs 60+ in order to advance a nominee is a circumscribing the executive options (or court, if it chose to vest appointment of these judges in courts) in a way that puts more power in a minority of the Senate, than the Constitution intends for a minority of the Senate to have.

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Maybe it's no big deal. I don't see anything in the Constitution that says judges MUST hear cases. Only that they have the power to. ;-)
4.2.2008 8:34pm
Oren:
I'll restate my point. The net effect of the Senate saying it needs 60+ in order to advance a nominee is a circumscribing the executive options (or court, if it chose to vest appointment of these judges in courts) in a way that puts more power in a minority of the Senate, than the Constitution intends for a minority of the Senate to have.
Then it's pretty terrible that the framers intended one thing but wrote down words that means something totally different.
4.2.2008 8:39pm
Oren:
s/means/mean/
4.2.2008 8:41pm
cboldt (mail):
-- The Senate, as a body is empowered to a&c to Presidential nominees. This implies that the Senate must decide what constitutes a valid grant of consent --

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For Circuit and District court nominees, the Senatorial A&C role is expressed in a statute. Would it comport with you sense of adhering to the Constitution if the statute said "the Senate shall unanimously approve all presidential nominees."

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The Constitution permits a structure where the Senate vests the appointment power entirely outside of itself -- obviously Congress would retain the impeachment power, so isn't totally outside the loop.

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Now, I'm not saying a 60 vote hurdle is the same as unanimity, so facts on the ground are a matter of degree. I see a 60 vote hurdle for A&C as moving in a direction contrary to the balance expressed in the Constitution.
4.2.2008 8:44pm
cboldt (mail):
-- Then it's pretty terrible that the framers intended one thing but wrote down words that means something totally different. --

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That's just a round about way of saying you and I are at an irreconcilable difference over interpreting the balance of power the Constitution aims to set regarding appointments.
4.2.2008 8:46pm
Oren:
[For Circuit/District Court nominees] Would it comport with you sense of adhering to the Constitution if the statute said "the Senate shall unanimously approve all presidential nominees."
Absolutely. They can even pass a law that says "Circuit/District Court nominees shall be appointed with the consent of 2/3rds of the active members of 'The Volokh Conspiracy' excluding guest bloggers but in any case not without the consent of Orin Kerr". That would certainly be a stupid statues (not the first, not the last) but it is well within Congress' powers to provide whatever mechanism it wants for the lower courts.

Now, I'm not saying a 60 vote hurdle is the same as unanimity, so facts on the ground are a matter of degree. I see a 60 vote hurdle for A&C as moving in a direction contrary to the balance expressed in the Constitution.
I just don't see that "balance" anywhere in the Constitution. My reading is that of a power (confirmation of SCOTUS Js) vested in the institution of the Senate to be carried out in whatever manner that institution deems to carry out its prerogatives.

There is of course, an obvious remedy if the Senate uses its institutional powers in a fashion that does not comport with the popular will: vote them out.
4.2.2008 8:52pm
Oren:
That's just a round about way of saying you and I are at an irreconcilable difference over interpreting the balance of power the Constitution aims to set regarding appointments.
Not quite. I was implying that your reading is contra-textual in the sense that it posits an intent to do something that is at odds with the actual wording of the document.

It is quite possible (since my powers to read the minds of the living are limited, let alone the minds of the dead) that the framers did actually intend to create the "balance of power" you've alluded to but merely frakked up the wording and wrote something entirely different.
4.2.2008 8:57pm
mthorn10 (mail):
The truth about which party is "more obstructionist" can be seen most easily in the voting numbers, although this does not account for those nominees who never made it out of committee. In recent history, if a nominee gets a full vote of the Senate, it appears that a larger percentage of Democrats (regardless of which party controlled the Senate) voted against confirmation of nominees of a Republican president than the percentage of Republicans who voted against the nominees of a Democratic president.

Face it, the Republicans are wimps. Don't they know that nice guys finish last? Although with such rancor and partisanship on both sides of the aisle, I'd say that we (the people) are the real losers. Let's Clean House...and Senate!!
4.2.2008 9:00pm
cboldt (mail):
-- My reading is that of a power (confirmation of SCOTUS Js) vested in the institution of the Senate to be carried out in whatever manner that institution deems to carry out its prerogatives. --

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And it seems, you find it totally proper function for the Senate to have a power and refuse to exercise it.

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And, it seems you'd find no constitutional imbalance between the president and the Senate should the Senate choose unanimity as the hurdle for confirmation of a SCOTUS judge. "It'd be the rule of the Senate."

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And so, we're at irreconcilable loggerheads.
4.2.2008 9:04pm
cboldt (mail):
-- I was implying that your reading is contra-textual in the sense that it posits an intent to do something that is at odds with the actual wording of the document. --

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We really are at an irreconcilable difference. It's over the construction and extent of "shall have the power to make its own rules."
4.2.2008 9:07pm
cboldt (mail):
-- It's over the construction and extent of "shall have the power to make its own rules." --

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As well as other balance of power clues in the vein of appointments, such as permitting Congress to vest appointment power entirely outside of itself, but not within itself.
4.2.2008 9:11pm
Oren:
My 7:57 post was too harsh. Let me rephrase.

I accept that the Constitution is more than merely a set of clauses but rather contains overarching concepts and ideals. The concept of 'balance of power' is certainly among those ideals and the actions of government entities should strive to comport with those ideals as well as the bare text.

Your judgment that the Senate has failed to live up to that ideal is therefore perfectly valid.
4.2.2008 9:16pm
Oren:
And it seems, you find it totally proper function for the Senate to have a power and refuse to exercise it.
Refusing to exercise a power is always a valid option. Congress has the power to suspend Habeas, for instance, so is it proper for them to refuse to exercise that power?
And, it seems you'd find no constitutional imbalance between the president and the Senate should the Senate choose unanimity as the hurdle for confirmation of a SCOTUS judge. "It'd be the rule of the Senate."
I would decry it politically as an imprudent (and impudent) act of the Senate and vote against Senators supporting it. I might even consider it contrary to the animating spirit of the Constitution and the balance of power.

What I will not do, however, is support any assertion that it is not within the Senate's power to do so when it clearly is.
It's over the construction and extent of "shall have the power to make its own rules."
How do you propose to construct that phrase?
4.2.2008 9:24pm
mthorn10 (mail):
Oops! I didn't realize when I began drafting my comment that I was interrupting a private conversation.
4.2.2008 9:40pm
cboldt (mail):
-- Refusing to exercise a power is always a valid option. Congress has the power to suspend Habeas, for instance, so is it proper for them to refuse to exercise that power? --

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I had extreme and broader "never happen" hypotheticals in mind. Refuse to confirm ALL nominees, PERIOD. Where the Senate chooses to not exercise A&C at all, in a show of power against the executive. For cover, erect a rule that says "unanimity required." Or, refuse to legislate. Or refuse to consider any treaty for ratification. Nothing says they HAVE to do that stuff, only that they have the power to.

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Still legitimate?

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-- What I will not do, however, is support any assertion that it is not within the Senate's power to do so when it clearly is. --

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At least we've reached the point where we admit we find each other's positions to be wrong. Your side of the argument is winning, the Senate has set a defacto 60 vote hurdle for all nominees.

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-- How do you propose to construct that phrase ["shall have the power to make its own rules."]? --

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By "construction" I don't mean the recitation of words, I mean the interpretation or application of them. I don't propose any change to the recitation. I think the words "it's own" have a limiting effect on rule-making power when an action implicates a balance of powers such as appointment and impeachment, and I think the part of the constitution that permits Congress to completely vest appointment power outside of itself but not inside itself to illustrate the limit of power vis a vis appointments that the framers intended to give the Senate.
4.2.2008 9:46pm
cboldt (mail):
-- The truth about which party is "more obstructionist" can be seen most easily in the voting numbers --

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Not many people pay that close attention. Besides the numbers, one can view the divergence between words and action. The GOP and Senator Frist in particular dropped the "vote for every nominee" chant right after the gang of 14 sprang to life. The GOP is enabling at best, probably complicit in blocking nominations. McCain and Graham blocked Haynes when the GOP had control of the SJC.
4.2.2008 9:56pm
Bob from Ohio (mail):
The Senate has not functioned properly for quite a while now.

Their "rules" are a joke. Look at how Specter is going to act, he is going to deny "unanimous consent" for the routine breaking of the sacred rules of the Senate. They have rules that they never follow. Some "rule".

Their formal and informal rules on nominees are especially silly. Single senators can block appointments that affect whole circuits or whole executive departments for no reason or for patently ridiculous reasons.

Not to pick on Sen. Feinstein since they all do it and she usually seems far smarter than the average Senator, but read her press release on the 9th Circuit appointment linked above. If the Founders had thought that appointments would be held up for such reasons, they probably would have despaired and petitioned for reunion with England.
4.2.2008 10:31pm
Gaius Marius:
Frankly, the time has come for the U.S. Constitution to be amended to abolish the Senate once and for all.
4.2.2008 11:19pm
Oren:

For cover, erect a rule that says "unanimity required." Or, refuse to legislate. Or refuse to consider any treaty for ratification. Nothing says they HAVE to do that stuff, only that they have the power to.

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Still legitimate?
If the voter keep electing Senators, I presume its because they support what they are doing. If the voters want no legislation passed, nor treaties ratified, nor nominees confirmed, then that's what the voters want. It is legitimate because the Senators are elected and I have no right to substitute my judgment for that of the electorate.

By "construction" I don't mean the recitation of words, I mean the interpretation or application of them. I don't propose any change to the recitation. I think the words "it's own" have a limiting effect on rule-making power when an action implicates a balance of powers such as appointment and impeachment, and I think the part of the constitution that permits Congress to completely vest appointment power outside of itself but not inside itself to illustrate the limit of power vis a vis appointments that the framers intended to give the Senate.
This doesn't answer the question of how the phrase is constructed at all! Allow me to rephrase: How do you think the rules of the Senate vis-a-vis these "special" powers (defined suitably) should be defined? What remedy (other than voter disgust) do you propose the Executive should have against a 'Senate gone wild'? Should he file suit compelling action on nominees? Simply fill the position by fiat? In short, I can't conceive of any possible Constitutional structure that would accomplish your goal without completely giving away the entire barn.

If there is no practical way to implement your ideals into some hypothetical structure then I venture that, while laudable, those ideals are unsuitable to actual governance.
4.2.2008 11:52pm
Dilan Esper (mail) (www):
But where the activity in question is not purely legislative, e.g., participation in selection of Supreme Court judges, conducing impeachment trials, reviewing and rendering advice and consent on international treaties, the Senate ought to adhere to the balance of power envisioned by the Constitution.

The problem with this is you are presuming that the framers intended that there would be factions/parties in the Senate and the Constitution was intended to maintain a rough balance of power between the parties.

In fact, the Constitution was intended to maintain a rough balance of power between the branches of government. And that's quite different. The Senate has just as much power under a 60 percent majority requirement as under a 50 percent majority requirement. The only difference is what body of Senators can act, or prevent action, on behalf of the Senate. That's an issue that the framers didn't care about in this instance-- and knew how to indicate they cared about when they did, such as in the veto override and treaty ratification provisions.
4.3.2008 12:04am
Jmaie (mail):
Dilan - kudos, from someone usually in complete disagreement with your position...
4.3.2008 2:58am
cboldt (mail):
-- In short, I can't conceive of any possible Constitutional structure that would accomplish your goal without completely giving away the entire barn. --

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I think the Constitutional structure is fine. The question is whether or not the Senate is holding up its part of the deal. There is no remedy, I've noted the question is non justiciable, and the public is fine with the Senate's preference (mindful that a minority of the Senate is empowered to withhold action) of obtaining more, rather than less, say so over which people will eventually be appointed.

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You hold the point of view that the Senate is acting within constitutional boundaries. I vigorously disagree. So what?

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-- In fact, the Constitution was intended to maintain a rough balance of power between the branches of government. And that's quite different. The Senate has just as much power under a 60 percent majority requirement as under a 50 percent majority requirement. --

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My point has been that the balance as between the president and the senate changes as the threshold for getting past the senate is elevated. When the hurdle is simple majority, the president has the lowest hurdle (as between the senate and the president). But when a minority of senators has and asserts the power to deny rendering a decision, the president can be forced to capitulate to that group (or individual) by choosing a different nominee.
4.3.2008 10:11am
cboldt (mail):
-- It is legitimate because the Senators are elected and I have no right to substitute my judgment for that of the electorate. --

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By that logic, every piece of legislation, every piece of executive order, etc. is legit.

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That position, taken literally, eliminates debate over legitimacy of action. "They did it, ergo it's legitimate."

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-- If there is no practical way to implement your ideals into some hypothetical structure then I venture that, while laudable, those ideals are unsuitable to actual governance. --

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See above. "They did it, therefore it's legitimate." Feh. My position is that the Senate is supposed to accept or reject nominees, promptly. The process isn't set up so each position has a menu or multiple nominees for the Senate to pick and choose from -- the only tool they have to dispose of a nomination is to vote on it. If they want a different name, they have to reject the one in hand. By erecting super-majority hurdles and refusing to vote on certain nominees, the Senate is dysfunctional as compared with "actual governance" under the Constitution.

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I think the Senate deserves ridicule for its conduct in confirmations, and you find its action to be legitimate and in complete harmony with the balance of powers as expressed in the Constitution. That is what I refer to as an irreconcilable difference of opinion.
4.3.2008 10:27am
cboldt (mail):
-- If there is no practical way to implement your ideals into some hypothetical structure --

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Modify Senate Rule XXXI (nominations) to resemble the structure of Senate Rule XXX (treaties), but substitute simple majority for the two-thirds. Remove the cloture widget from the confirmation process, as is currently the case with certain classes of legislation (budget, for example).

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There's one way. But there is no will.
4.3.2008 10:36am
Smokey:
Hutz:
it is nice to see that someone concedes that today's Constitution does not require the Senate to vote on nominees.

If it hasn't consented, it hasn't consented. That's it.
Let's apply that to everything, shall we? The Post Office has a duty to deliver the mail, but if they don't consent, then they don't consent, right? And so on.

The real problem is the little emperors who run the Judiciary Committee. They are deliberately refusing to allow the Senate to fulfill its Constitutional duty.

And:
Would someone please explain where in Article II it says that the Senate is required to vote on nominees? Seriously.
Again, consent = an up-or-down vote by the Senate's Committee of the Whole. The Constitution makes no exception allowing a relatively small committee to preempt the Senate's duty.

Oren:
The President is the one that needs to get affirmative consent from Senate.
Actually, all U.S. citizens are entitled to a Senate vote on federal judicial appointments.
4.3.2008 2:51pm
Connecticut Lawyer (mail):
I've yet to read a reasoned argument for why the Democrats should refuse to allow a floor vote on the President's nominees. If the nominees are as bad as the Democrats say, their nominations will fail. Especially since the Democrats control the Senate. Wouldn't that solve the whole problem? The Dems bring the nominations to the floor, vote them down 51-49, and tell the president to find some new nominees? That would break the logjam and allow business to go forward. Am I missing something here?
4.3.2008 3:06pm
Dilan Esper (mail) (www):
My point has been that the balance as between the president and the senate changes as the threshold for getting past the senate is elevated. When the hurdle is simple majority, the president has the lowest hurdle (as between the senate and the president). But when a minority of senators has and asserts the power to deny rendering a decision, the president can be forced to capitulate to that group (or individual) by choosing a different nominee.

You are still missing the point. The Constitution says that the President and the Senate have to assent to the nomination. The President is a single person, so there's no issue as to what constitutes his or her assent. But the Senate is a body.

If you are going to argue that the Constitution requires 50 percent + 1 to confirm a judge, you must be arguing that the Senate "speaks" when a majority of its members speak.

But given that definition, the "Senate" (i.e., a majority of its members) doesn't have any MORE power if a supermajority requirement is imposed. In fact, the "Senate" has less power, because some things that a majority of the Senators wish to do will be frustrated. (Indeed, that's the whole policy argument against ALL filibusters, not just judicial ones.)

The "Senate" isn't empowered-- a MINORITY of Senators is given power, at the expense of the Senate as a whole, speaking through its majority. If anything, the "Senate" is actually disempowered.

And the problem is that there is no evidence that in this instance (as opposed to veto overrides, treaty ratifications, and constitutional amendments), the framers of the Constitution cared about the balance of power between factions in the Senate, as opposed to the balance of power between the Senate and the President. The framers gave a chunk of power to the Senate but didn't tell the Senate whether or not it should give up some of that power to protect minority factions.

Finally, the only reason this looks like power is being taken away from the President is because it came up in the context of a President who had a partisan Senate majority. If the President has a partisan Senate supermajority, the President doesn't have any less power because of the supermajority requirement. And if the President faces a partisan Senate opposition who has the majority, the President also doesn't have any less power as a result of the supermajority requirement.

What you are lacking is any evidence that the framers intended to strike a particular balance between a President and members of an opposition party or faction in the Senate, rather than simply requiring that two branches of government, sometimes of the same faction and sometimes of opposing factions, would sign off on the nominee in some fashion.
4.3.2008 3:23pm
Dan Hamilton:

I've yet to read a reasoned argument for why the Democrats should refuse to allow a floor vote on the President's nominees. If the nominees are as bad as the Democrats say, their nominations will fail. Especially since the Democrats control the Senate. Wouldn't that solve the whole problem? The Dems bring the nominations to the floor, vote them down 51-49, and tell the president to find some new nominees? That would break the logjam and allow business to go forward. Am I missing something here?


The Democrats would not vote them down they would pass. The Democrats would be forced to fillibuster appointments while they were in control. The Democrats problem is that they don't have the votes to reject the appointments, so they have to find some other why to stop them. They decided to just not vote.

The Democrats are children who refuse to play because they might lose. Unless it is fixed so that they win they refuse to play. Typical liberal - Heads I win tails you lose.
4.3.2008 4:18pm
cboldt (mail):
-- The Constitution says that the President and the Senate have to assent to the nomination. --

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Not for Circuit Court nominees. In that case, the Congress can, by law, vest appointment power in the president or the courts.

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-- But given that definition, the "Senate" (i.e., a majority of its members) doesn't have any MORE power if a supermajority requirement is imposed. In fact, the "Senate" has less power, because some things that a majority of the Senators wish to do will be frustrated. --

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You are inverting the logic. In the situation where status quo is absence of advise and consent, imposing a supermajority requirement to overcome status quo results in a minority of the Senate being able to stifle the expressed wish of the nominating/appointing authority, i.e., the executive branch.

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It's not that the Senate has any more or any less power as against whatever faction constitutes its own majority; it's that by refusing to vote, it is not fulfilling a role it's charged with. And the excuse given by the Democrats when they were in the minority was that the minority of Senators has the right, due to Senate rules, to demand (without voting!) that the president choose a different nominee.
4.3.2008 4:44pm
cboldt (mail):
-- What you are lacking is any evidence that the framers intended to strike a particular balance between a President and members of an opposition party or faction in the Senate, rather than simply requiring that two branches of government, sometimes of the same faction and sometimes of opposing factions, would sign off on the nominee in some fashion. --

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My bone is with the "in some fashion" that is left hanging there. It seems you are fine with a 60 vote supermajority (i.e., the will of 41 Senators can prevent an appointment, and does represent any impingement on executive prerogative), but what if the Senate were to change the height of the hurdle? It used to take 23/rds to invoke cloture, and for 100+ years, there wasn't even a cloture widget, it took literal unanimity (absence of objection) to get to a vote.

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The default situation in a legislative body is simple majority rules. The function of cloture is to permit debate to continue until a sufficient number of the body is informed enough to cast a principled vote -- it's an abuse of cloture when cloture is used to prevent voting when the individual members are informed and ready to vote.

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What you are lacking is any evidence that the framers intended a supermajority approval by the Senate, in order to provide advice and consent. The framers DID provide for a supermajority requirement in the cases of treaties and impeachment.
4.3.2008 4:55pm
Dilan Esper (mail) (www):
Not for Circuit Court nominees. In that case, the Congress can, by law, vest appointment power in the president or the courts.

If anything, though, this actually runs counter to your position. The Constitution gives the majorities of Congress the power to waive its say over certain types of nominations, but your argument is that even though it may waive its say entirely, a Senate rule that diminishes the Senate's power to act through a majority of Senators without waiving it entirely is unconstitutional. (Another example is that the Congress can waive its right to consent by calling a congressional recess. Yet, again, merely diminishing the Senate's power is unconstitutional)

You are inverting the logic. In the situation where status quo is absence of advise and consent, imposing a supermajority requirement to overcome status quo results in a minority of the Senate being able to stifle the expressed wish of the nominating/appointing authority, i.e., the executive branch.

I have several observations about this:

1. If you are right, than it isn't simply the filibuster that is unconstitutional. Courtesy holds and the committee system have to be unconstitutional too.

2. It seems unworkable. For one thing, a filibuster doesn't kill a nomination, it just delays it to death. The Senate can always come back, lift the filibuster later, and confirm or reject the nominee. So what is the time limit on a Senate's action on a nomination? 60 days? 90 days? 120 days? What if more time is needed (say, for instance, that the Senate had decided it needed to extensively investigate the allegations by Anita Hill against Clarence Thomas before voting)? Is it constitutional to delay for a reason, and only unconstitutional to delay for no reason?

3. Why is the President the nominating authority? You are begging the question here. To my eyes, the Constitution pretty clearly gives both the President and a Senate a participatory role in the process. Otherwise, the word "advice" in "advice and consent" is rendered meaningless. And if the Senate is supposed to have the role in the selection of the nominee as well as the ultimate confirmation, I think it looks a lot more, again, like a majority of the Senate is agreeing through its rules to limit its own power, including its power in the advice and consent process.

And the excuse given by the Democrats when they were in the minority was that the minority of Senators has the right, due to Senate rules, to demand (without voting!) that the president choose a different nominee.

I think you are reading in a more grandiose claim than was actually made by the Democrats. What they were saying was that under the Senate rules, a 40 vote minority is allowed to stop Senate business, including judicial nominations. They were not saying the President HAD to choose another nominee; the President could also have left the position vacant or made an issue of obtaining a 60 vote majority in the next election, or made an issue of obtaining a majority that would vote for different Senate rules at the start of the next Senate session.

But I don't think the Democrats were saying what the President must do; they were saying what they were willing to cooperate with. And bottling up legislative business is a time-honored tactic in Washington.

My bone is with the "in some fashion" that is left hanging there. It seems you are fine with a 60 vote supermajority (i.e., the will of 41 Senators can prevent an appointment, and does represent any impingement on executive prerogative), but what if the Senate were to change the height of the hurdle? It used to take 23/rds to invoke cloture, and for 100+ years, there wasn't even a cloture widget, it took literal unanimity (absence of objection) to get to a vote.

That's true enough. And as a policy matter, I actually agree with you about majority rule in the Senate. Believe me, there's a lot of legislation that I would like to see that gets bottled up there due to the filibuster.

But that historical practice you cite also is very informative on the issue we are discussing, which is the constitutionality of the filibuster. The Senate has always had these sorts of rules. Indeed, it still has unanimous consent rules, for your information. It is actually possible for 1 senator to bottle up the Senate indefinitely, even now. They don't do it because there are both electoral and legislative disincentives to doing it, but in the 19th Century, you will find plenty of instances (usually having to do with slavery) where Senate business, including the confirmation of nominees, was bottled up for some length of time because of the inability of the body to obtain unanimous consent to proceed.

The point is, none of this can possibly be unconstitutional because nobody imagined in 1787 that they were requiring Congress to consider anything with expedition. Indeed, the Constitution says that each house can make its own rules. Many of the authors of the Constitution went on to serve in the Congresses that made rules that empowered members of each body to bottle up legislative business for various reasons.

The fact of the matter is, we have over 200 years of history during which both houses of Congress have always assumed that they have the power to make rules that give minorities more or less power to affect congressional business. The effect of such rules-- permitting members to call for debates, require the reading of legislation, require that business be heard and voted on by committees, requiring procedural votes before a matter can be heard, etc.-- is to allow minorities to delay and in some cases prevent a congressional majority to get its way. Nothing in the Constitution requires such rules-- we could have a Congress that operates by strict majority rule while disempowering minorities from doing anything to stop legislative business. The House happens to be somewhat closer to that than the Senate is. But to argue that this is an issue of constitutional dimension is to argue that for 200 years, we haven't understood that the legislature did not have the right to impose any sorts of procedural restrictions or rules not waivable or overridable by a majority vote. That seems quite questionable to me.
4.3.2008 6:16pm
cboldt (mail):
3. Why is the President the nominating authority?
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.. [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ...
U.S.Const. Art II, Sec.2


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The president is the authority for nomination and appointment. The Senate's role is an intermediate step, between nomination and appointment, necessary to permit the appointment.


- Otherwise, the word "advice" in "advice and consent" is rendered meaningless.

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Oren argued that silence/inaction is an appropriate means of expressing a conclusion regarding the "advice and consent" role. I disagree. Silence is uncertainty, and does not dispose of the nomination. But as you note, the passage of time, combined with inaction, does the same thing. Withholding of advice and consent results in inability to appoint.

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I argue that the Senate is derelict when it doesn't render a vote on a nominee. Obviously, some time is necessary to evaluate the nominee, but we're not quibbling over months here. Some nominees were held in limbo for years.

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I'm not arguing that the Senate isn't entitled to render advice and consent. I'm arguing that it is supposed to render it. They are supposed to give it effect, not just look at it, as though they were bumps on a log.

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I think it looks a lot more, again, like a majority of the Senate is agreeing through its rules to limit its own power

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That appears to adopt Oren's point of view. But you extend a bit to the conclusion that inaction is equivalent to "reduction" or "limiting" of power. So, a Senate that was totally inactive in advice and consent wouldn't hamper the president's appointment power? Please. In the case of withholding advice and consent, silence by the Senate IS power — power that prevents the president from exercising his appointment power.

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It is actually possible for 1 senator to bottle up the Senate indefinitely, even now.

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The cloture widget can get around that. New in 1917, IIRC. Before then (and after 1806 - another rule change then removed "move to the question") it was true that a single Senator could produce a "permanent" block. But it's not true now, once a matter is on the floor.

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As to the use of cloture, filibuster, withholding consent, objecting, whatever one calls it; I differentiated above between doing so in the context of legislation (which is purely a Congressional activity) and the context of nominations, which is a "mixed" activity between two branches. My beef is in the context of nominations, and I hold that the Senate is acting in a way that is contrary to the founder's intent.
4.3.2008 7:26pm
Dilan Esper (mail) (www):
A couple of responses:

1. You are still reading "advice" out of "advice and consent". Advice comes before nomination. The Senate has a role in choosing the nominee, not only in confirming him or her.

2. I understand the filibuster is a delay device that effectively kills the nomination, but it is still a delay device. What is the constitutionally required maximum time that the Senate can take? What is the source of such a time limit in the constitutional text or history?

3. You may not realize this, but the Senate still requires unanimous consent to do anything. This is before we even get into cloture issues. 1 Senator can still bottle the whole thing up. Chris Dodd did it last year on the telecom immunity issue, where he didn't even have the votes for a filibuster but still stopped Senate business. Cloture eliminates one procedural obstacle only.

4. Legislation is also a "mixed" activity between the branches, just like nominations. Congress passes, the President signs or vetoes. And note, that unlike with nominations, the framers knew how to put a time limit in when they wanted one-- the President has 10 days to veto a bill.

But the main point is, the fact that legislation is a mixed activity should mean, under your theory, that the filibuster is unconstitutional as to legislation as well.

5. You haven't answered whether rules that require a committee hearing and vote, and courtesy holds are also unconstitutional. Or whether investigatory holds are unconstitutional.
4.3.2008 11:26pm
cboldt (mail):
-- 1. You are still reading "advice" out of "advice and consent". Advice comes before nomination. The Senate has a role in choosing the nominee, not only in confirming him or her --

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"The president shall nominate (comma) and by and with the advice and consent of the Senate (comma) shall appoint." You are incorrectly construing the word "advice" from the term of art "advice and consent" in order to displace it into the presidents prerogative to nominate. The Senate's formal role is post-nomination.

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Not that the president can't or shouldn't seek to obtain agreement in advance; but he has no obligation to do so. He has the power to put up stinkers, and the Senate has the power to reject them.

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-- What is the constitutionally required maximum time that the Senate can take? --

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I don't see one. Let's play the game in reverse. What say the president chooses to not nominate for a position, say Secretary of State, or SCOTUS. What's the constitutional maximum time for that, before he's in breach of a duty of the office? After all (using your argument), the Constitution doesn't say he MUST nominate.

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-- You may not realize this, but the Senate still requires unanimous consent to do anything. --

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Cloture is a substitute for unanimous consent. All Dodd did was invoke a 30 hour clock at a point in the session where Reid couldn't afford to wast 30 hours. Dodd was object to making FISA pending, but it came pending despite his persistent objection. Now, had the cloture motion on the motion to proceed been rejected, if there were fewer than 60 AYE votes on the cloture motion, then the measure would have been totally obstructed rather than merely delayed by a day and a quarter.

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-- Legislation is also a "mixed" activity between the branches, just like nominations. --

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If you don't appreciate the difference between acting on a nominee and acting on self-generated legislation, then I'm wasting my time typing in response to you.

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-- You haven't answered whether rules that require a committee hearing and vote, and courtesy holds are also unconstitutional. Or whether investigatory holds are unconstitutional. --

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It depends. Although I prefer to avoid the label "unconstitutional" in favor of something like minding their duty and acting as a responsible body.
4.4.2008 1:54am
cboldt (mail):
-- You are still reading "advice" out of "advice and consent". Advice comes before nomination. The Senate has a role in choosing the nominee --

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If nominees are to be pre-approved (giving full effect to "advice" role that you propose), then why would there be a "consent" vote? If the Senate "chooses" the nominee in advance, in effect guaranteeing an affirmative conformation vote, why bother with a vote at all? And if no vote is required for approval (except to satisfy form), doesn't a pre-approved nomination have the right to the appointment? That is, wouldn't it be proper to invert the presumption -- nominees have the right to the appointment, unless the Senate voices buyer's remorse as to its pre-approval?

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The Senate's proper role is in endorsing APPOINTEES. It also has the power to reject a nominee -- it has done so.

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And, by observation, one can see that the Senate also has the power to sit like a bump on a log even when it has an important role. It sat like a bump on a log for 4 years on the subject of Military Commissions, while it watched President Bush craft a system without Congressional input (and having that system shot down by SCOTUS as constitutionally infirm for want of being created by an act of legislation); and it's just as much a bump on a log in the arena of voting on nominees.
4.4.2008 2:33am
Oren:
The Senate's proper role is in endorsing APPOINTEES. It also has the power to reject a nominee -- it has done so.
The Senate has not once in its history rejected an appointee - in all such putative cases it merely withheld its consent.

Withholding of advice and consent results in inability to appoint.
The Senate has indeed been withholding consent but any withholding of advice is purely a function of unwillingness to listen.

The Senate's proper role is in endorsing APPOINTEES.
No, they only become appointees after consent. The grammar of the A&C phrase clearly implies that the verb "appoint" has as its subjects both the President and the Senate. It is a joint operation, not a game of "follow the leader".

What you are lacking is any evidence that the framers intended a supermajority approval by the Senate, in order to provide advice and consent.
There doesn't appear to be any evidence that they required a simple majority either.


And, by observation, one can see that the Senate also has the power to sit like a bump on a log even when it has an important role.
Perhaps there is value in having a safety-valve in the system that responds a bit more slowly.
4.4.2008 4:44am
cboldt (mail):
-- Perhaps there is value in having a safety-valve in the system that responds a bit more slowly. --

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The Senate isn't even executing a slow response. It's engaged in persistent and dysfunctional routine of inaction on a function assigned to it under the Constitution. It's using the cloture widget as cover, and a substantial fraction of observers are falling for the ruse and seeing the inaction as the legitimate, normal and proper functioning of a deliberative, decisive body.

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The proper and nominal function of cloture in a deliberative body is to extend debate until the members have decided how to vote. Once a sufficient number have made up their minds, a functional deliberative body will hold the vote.

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-- The Senate has not once in its history rejected an appointee --

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Bork, for SCOTUS, is a recent, high-profile example of a nominee who obtained a vote, but failed to obtain simple majority support. There are plenty of others who were subjected to failed confirmation votes.

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You're just using a label in an attempt to equate inaction (withholding an expression of advice and consent) with action (conducting a confirmation vote and failing to obtain simple majority) in this area, on the semantic grounds that both represent a withholding of advice and consent. It's one of our points of disagreement. I'm not surprised that you'd continue the semantics game by labeling an unsuccessful confirmation vote as "not rejection." But the debate is over the difference between conducting confirmation votes (where some nominees will be rejected) and not conducting them (leaving uncertainty as to the outcome of a confirmation vote), so using one and the same label for both ("simply withholding advice and consent") is a short-circuit of the debate.
4.4.2008 9:34am
cboldt (mail):
Brief History of Nomination Fights, at the US Senate web site, even uses the word "rejected" to describe the Senate's action in voting certain nominees down.
4.4.2008 11:29am
Dilan Esper (mail) (www):
It depends. Although I prefer to avoid the label "unconstitutional" in favor of something like minding their duty and acting as a responsible body.

Well, if it's not unconstitutional, there's no justification for the nuclear option. The whole point was to have the Vice President rule the action unconstitutional and then a majority of the Senate would affirm his ruling.

Look, if all you are saying is that the Senate's delay tactics aren't responsible, it seems to me you have an arguable point and that this is part of the rough and tumble of politics. Truman, after all, successfully ran against the "do nothing 80th Congress".

The stronger claim Republicans made is that filibusters of judges were unconstitutional. And that's complete bunk, a situational claim made up by pissed right wingers who didn't want to compromise with the Democrats on judges.
4.4.2008 12:59pm
cboldt (mail):
-- Well, if it's not unconstitutional, there's no justification for the nuclear option --
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If it's not unconstitutional, there's no justification for a rule change, etc.
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We'll part company on this point. I disagree with you, and don't think for one second that you can be persuaded to adopt my point of view. Likewise, you are wasting your time trying to get me to see it your way.
4.4.2008 1:16pm
c.gray (mail):

The stronger claim Republicans made is that filibusters of judges were unconstitutional. And that's complete bunk, a situational claim made up by pissed right wingers who didn't want to compromise with the Democrats on judges.


Keep this in mind when the Republicans filibuster Obama's "Outrageously liberal" nominees.

The reality is this problem, the refusal of the Senate to act on judicial nominations, has been getting steadily worse since the 90s. And it has real, unpleasant consequences for litigants in the federal system. Neither party has covered themselves in glory on this issue, and the Senate as an institution has preferred to preserve every conceivable privilege of the individual senators rather than come up with a compromise that works for the benefit of US Citizens in general.
4.4.2008 1:24pm
cboldt (mail):
-- if all you are saying is that the Senate's delay tactics aren't responsible, it seems to me you have an arguable point and that this is part of the rough and tumble of politics. --

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I refuse to vote for or otherwise support any politician who believes as you do, that the Senate has the right to use minority power to stifle taking a vote on a nominee. That means I reject nearly 100% of the democrats. It's part of the rough and tumble of politics.
4.4.2008 1:36pm
Nena Bartlett (mail):
You may be interested in also reading Curt Levey's article from the Committee for Justice, who discusses the showdown at the Senate Judiciary Committee meeting yesterday.
4.4.2008 5:55pm
Dilan Esper (mail) (www):
If it's not unconstitutional, there's no justification for a rule change, etc.

cboldt, the nuclear option was premised on a finding that the cloture rule was not only wrong, but unconstitutional. If it was just wrong, the Republicans had to wait until the next session of Congress to change it. So the constitutionality is everything.

Keep this in mind when the Republicans filibuster Obama's "Outrageously liberal" nominees.

I have no constitutional objection to them doing so. I think the Republicans should be voted out of office on the merits, but I don't think the Democrats should get to exercise the nuclear option.

What I do think is that if the legislators could trust each other, they might make a deal that would allow everyone's nominees to get majority votes. But nobody trusts each other to uphold the deal.

I refuse to vote for or otherwise support any politician who believes as you do, that the Senate has the right to use minority power to stifle taking a vote on a nominee. That means I reject nearly 100% of the democrats. It's part of the rough and tumble of politics.

You have every right to do that, and the Republicans have every right to make it an issue at the ballot box.
4.4.2008 5:59pm
LM (mail):
Dave N,

Those on the left who cheered mightily at the use of the filibuster against President Bush's nominees will scream the loudest when the same tactics are used against President Obama's. And these same screamers will accuse Republicans of hypocrisy for returning the favor.

It won't be hpocrisy?
4.5.2008 8:55pm
LM (mail):
hypocrisy
4.5.2008 8:57pm
cboldt (mail):
It won't be hypocrisy?

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By both sides. It's old-hat hypocrisy. Both sides have already taken both sides of the issue. There are a substantial number of speeches in the Congressional Record where a Democrat says a nominee deserves dispositive action, expressed by a simple majority.

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In the area of legislation, Senator Reid sang that "simple majority" tune just last week.

That is where we are. We are not going to agree to a 60-vote margin. It is unfair. It is unfair that every time someone thinks they may lose, they want a 60-vote margin. I do not comprehend that. It has not been that way until the recent minority came into power, or lack of power, whatever the case may be.

Senator Reid - April 3, 2008


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He's either lying or mistaken (I pick lying) that the cloture widget hasn't been used by objecting Democrats. When it comes to judicial nominees, the mantra is "it's justified because these are lifetime appointments."

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I have no problem whatsoever if the GOP serves up a dose of revenge. Escalate away baby, it's part of the rough and tumble of politics. The Democrats want to stretch the language of the constitution to suit their objectives? Two can play that game.

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First thing I'd do is refuse to act on a Democrat president's cabinet and US Attorney nominations, unless they are pre-approved through the minority in the Senate.
4.6.2008 10:29am