Monday, April 25, 2005

Another "Constitutional" Option: End Advise and Consent

Art. II., Sec. 2 of the United States Constitution states: "[The President] shall . . . nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Here's the scary thought. The "advice and consent" of the Senate is optional for the inferior federal judges (U.S. Circuit Court of Appeals and U.S. District Courts). If the Senate wanted, Congress could just pass the law and vest the power in the President alone. No Senate committee confirmation hearings, no committee recommendation, no Senate floor vote, nothing. Of course, U.S. Supreme Court nominees would still have to go through the Senate, but since most cases never make it that far, so what?

On the flip side: The constitution does not distinguish between appointments to Art. II positions and Art. III, so the GOP is clearly splitting hairs here. Furthermore, there's nothing REQUIRING the Senate to give its consent. Why can't the Senate, using its powers under Art. I, Sec. 5, withhold its consent if it can withhold its consent at all? There's been no real explanation of that, and I would REALLY like to hear it.


OLS said...

You are a machine - can I be you when I grow up?

Modern Esquire said...

I can't but help feel pressure to do well after some of the comments I've received.

Anonymous said...

What's scary about that? In order to eliminate advise & consent, a law would have to be passed, which in turn would be subject to filibuster. In order to get around this, the Republicans would have to blast away the filibuster in its entirety, a far more nuclear option than just removing it for judicial appointments.

Modern Esquire said...

While it's true that such a bill would be subject to a filibuster, it's not true that the Republicans would have to blast away the filibuster in its entirety (unless, of course, you meant they would need to do that first in order to get such a bill to pass. But then such a rule change would also be subject to a filibuster.)

Congress could, under the cited provisions of Art. II of the U.S. Constitution, merely revoke the need of Senate confirmation by statute for judicial nominations only and preserve the consent for other inferior offices (i.e. Bolton).

Theoritically, Congress could even remove the advice and consent for specific offices such as the particular Circuits that Owen, Pryor, and Brown are under consideration.

To reverse such an action legally would be difficult as most courts would be inclined to find the issue a non-judicable political question.

If forced, Congress could justify the distinction by claiming the high vacancies and heavy caseload of those circuits required immediate attention and if any party was harmed by the statute, it was the U.S. Senate which, of course, obviously doesn't mind the change as it approved it.

Just something to think about.

ewilen said...

Yes, I did mean that, under the current makeup of the Senate (and almost any conceivable Senate in the near future), the Republicans would be unable to pass such a law--unless they first eliminated or circumvented the general filibuster rule, not merely the (alleged) special case of using the filibuster against judicial appointments.

But I don't see how you can write that such a rule change would be subject to filibuster while writing elsewhere (in the comments of Going Nuclear) that the "Constitutional Option" is clearly constitutional. If the Republicans can change the filibuster rule regarding judicial appointments, either in mid-session (as they seem to be claiming) or at the beginning of a Senate session (as has been suggested elsewhere), then why wouldn't they be able to change the rules on all uses of the filibuster?

ewilen said...

To complete my thought, since ending advise and consent would first require the elimination of the general filibuster, the Republicans would really have to go out of their way to use this approach instead of simply eliminating the filibuster on judicial appointments, which is more limited and more direct.

Modern Esquire said...

Ok... you missed the point entirely.

The point of the post is that the term "constitutional option" doesn't make it any less radical since, under the Constitution, the Senate could completely divest itself of the appointment process for non-Supreme Court judges. I really wasn't interested in the steps necessary to make it happen or the possibility of it passing.

There's nothing unconstitutional for the Senate to change its rules at any time or suspend the rules or whatever. The U.S. Constitution doesn't care.

The issue of its constitutionality is a red herring. The fact is that it's a misguided, radical policy. Constitutional or not.

ewilen said...

You're right, I certainly did miss that point. Yes, just because something might be Constitutional doesn't necessarily make it good policy. But for critics of the option, as opposed to advocates, the methods that the Republicans have been proposing to bring about their "option" are particularly scary in themselves. They look like another step on the path to claiming a unilateral privilege to (re)interpret the Constitution.