Wednesday, May 18, 2005

Goin' Nuclear: What's the Third Branch's opinion?

Of course, we'll never actually know what the U.S. Supreme Court actually thinks about Sen. Frist's attempt to trigger the nuclear option, since the matter is purely a political question not judiciable by the courts. Several blogs have already mentioned the fact that Sen. Schumer of NY had already gotten to Sen. Frist to concede on the floor that Frist himself has filibustered federal appellate nominees in the past. Also, if you're looking for a good primer on exactly what's so contraversial about what Frist and the GOP leadership is doing by pursuing the nuclear option, click here.

As I've mentioned in a prior post, the argument that the Senate is constitutionally bound to vote on all nominees and cannot use procedural devices as means of providing its advice and consent is without any serious constitutional merit.

To rule that the U.S. Constitution requires an "up-or-down" vote on all judicial nominees, as Vice-President Cheney intends on ruling, and therefore, any use of the Senate's procedural rules to stop that from happening is unconstitutional, requires a radical and unheard of interpretation of the Senate's Art. II, Section 2 advice and consent powers. The Cheney interpretation is that the Senate, and only the whole Senate, may exercise the advice and consent powers. But Tom DeLay has pointed out frequently that the Senate also has the sole power to remove a sitting federal judge under its Article I, Section 3 impeachment powers which states, in part: "The Senate shall have the sole Power to try all Impeachments."

What is illogical about the new Cheney interpretation is that it creates an interesting dichotomy: if Frist prevails, the Senate rules cannot delegate its appointment power, but can delegate the impeachment power. In other words, it'll take less Senators to impeach than to appoint!

In 1993, the U.S. Supreme Court heard the case of Nixon v. United States, 506 U.S. 224, 113 S. Ct. 732. Nixon involved a former Chief District Court Judge of the U.S. District Court for the Southern District of Mississippi who was convicted of two counts of making false statements to a grand jury. The Senate impeached, the Judge Nixon appealled up to the United States Supreme Court. Judge Nixon's main contention was that his Senate impeachment was improper because the Senate, operating under its rules, used a Senate committee, to conduct most of his trials. Nixon argued that the impeachment clause vests power solely in the whole Senate and does not permit that power to be delegated to a Senate committee.

But as then Solicitor General Kenneth Starr ('member him?) successfully argued, the Senate has the power to to set its own rules in handling impeachments and could use a fact-finding committee to as a constitutional delegation of the impeachment trial powers. "As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require." Citing, Dillon v. Gloss, 256 U.S. 368, 376, 41 S. Ct. 510, 512-513 (1921). For more discussion regarding the constitutional permissibility of delegation of impeachment powers to a committee under Senate rules, see Justice Stevens' concurrance. Nixon, 506 U.S. at 248-251.

Therefore, just as the Senate may delegate the impeachment power to a committee under the Senate rules that may never send the matter to the full Senate, so can the Senate do so in using its appointment powers.

The notion that the Senate must vote on every nomination and cannot use it's internal rules to obstruct or prevent that occurance is without any historical support and against the greater weight of Senate precedent and constitutional interpretation by the United States Supreme Court.

1 comment:

Katinula said...

Very good post. Really interesting and with references too. I think, after all this, I'm finally starting to get a handle on what exactly needs to happen 'go nucular'.