Advise and Consent

[TexasTiger 13,000]

US Constitution:

Article 2, Section 2, Clause 2: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . ."

The senators have to consent. In the case of the presidents' treaties (which affect their prestige and often policies much more than a mere judicial appointment) there even has to be a 2/3s majority in concurrence. Such a supermajority is not required for the appointments, but there is clearly no presumption that the president should be deferred to by the senate. The president should be consulting beforehand, which would have made consent easier to obtain. The issue isn't the filibuster. The issue is the independence of the Senate and of the judiciary. The question is whether we have 3 branches of government, or only one. Cass Sunstein puts it well:

"It may be granted that the Senate ought generally to be deferential to Presidential nominations involving the operation of the executive branch . . . The case is quite different, however, when the President is appointing members of a third branch. The judiciary is supposed to be independent of the President, not allied with him. It hardly needs emphasis that the judiciary is not intended to work under the President. This point is of special importance in light of the fact that many of the Court's decisions resolve conflicts between Congress and the President. A Presidential monopoly on the appointment of Supreme Court Justices thus threatens to unsettle the constitutional plan of checks and balances."

http://www.juancole.com/2005/05/nuclear-op...avid-humes.html

Of course, totalitarians don't believe in checks and balances.

[AUloggerhead 2,252]

The issue is the filibuster. 'Advice & Consent' implies debate & then a vote to confirm or deny. Filibustering is designed to stifle any debate and thus delay or impede a vote.

Article 1, Section 5, Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

It's perfectly rational & legal for the Senate to vote on its own rules, including those pertaining to filibusters. After all, it's been done before: former Ku Klux Klansman Rober Byrd (Democrat, WV) pushed a Senate rule through in the 1970's that changed the cloture requirement to end a filibuster from a 2/3 majority to a 3/5 majority. Bill Frist has proposed that filibustering not be used for judicial nominees and that all nominees deserve a floor vote -- again, going back to the Advice & Consent role established in the Constitution. Whos got a problem with the Senate fulfilling its responsibility?

I'm all for hearing the Advice of the Senate regarding Presidential nominees in debate on the floor. When that happens we can see who's for & who's against and for whatever explicit reason. Right now, obstructionists don't have to offer any reason or logic for opposing a nominee. They can hide behind the filibuster.