“… 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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law …”
- United States Constitution, Article II, Section II
I have heard several rather strained explanations from conservatives lately telling me that the above passage really means that it is unconstitutional not to allow an up-or-down, majority rules vote on the floor of the Senate for all presidential nominees. I find that quite amusing when coming from the same people who claim that we need “strict constructivists” on the bench. If you actually read the above passage, you will see no “plain language” stating this “obvious interpretation”. Nothing says we need a majority up-or-down vote on presidential nominees. Instead, it says that the President shall appoint them with the advice and consent of the Senate. So the real question is, what does “advice and consent” mean?
Interesting historic note: George Washington first assumed that phrase meant that he ought to be present at, and participate in, Senate debate on nominees and treaties. Of course, his mere presence stifled debate, and this practice did not last very long. My point? It wasn’t clear exactly what “advice and consent” meant two hundred years ago, and it is not obvious what it means today, despite what conservatives will tell you. That being said, I can think of three logical interpretations of what “consent” means.
One interpretation is exactly the one that the religious right gives: majority rules. When it says “consent of the Senate”, really it means “consent of a majority of Senators”. This interpretation seems to fit with other parts of the Constitution that indicate that the founders had a high opinion of simple majorities. Also, it would exclude both the filibuster and the committee system (which, you notice, no one is complaining about) as legitimate means of killing nominees. Furthermore, I should note that if we were taking such a view, we should also assume that anytime the Constitution says that legislation must be passed by a majority or two-thirds of Senators, that it means exactly what is says there as well. That would indicate that we should end use of the filibuster, or the committee system, or any other parliamentary procedure to kill a bill, as unconstitutional. That interpretation would, of course, require a complete overhaul of our legislative process, and would probably cause just as much harm as good.
Another equally plausible interpretation is that the sentence means “consent of all Senators”, or unanimous consent. This interpretation would seem to fit more with the Articles of Confederation, which the Constitution was replacing, although you could argue that because the founders did not specify otherwise that they simply assumed that we would do things like they had been done before. Of course, the framers of the Constitution wanted to move beyond unanimous consent in many areas because it is so difficult to get. Sen. Kennedy (D-MA) and Sen. Hatch (R-UT) just don’t agree on very many things, especially when it comes to judicial nominees. So, this interpretation would seem unwise as well.
Finally, you could interpret “consent of the Senate” as meaning that the Senate itself gets to decide how it will give its own consent. This would seem, in my mind, to make the most sense given the text. After all, if I ask you for your consent, you would assume that I am leaving it up to you what decision making process to use. It is the only interpretation of the clause that does not require the assumption that the framers just left out a few words. It also happens to be the interpretation that has been used over the course of the last two hundred years. Of course, feel free to disagree with me here, but my point is that the Constitution is not nearly clear enough to make any accusations about the unconstitutionality of an opposing viewpoint.
I have also heard a number of conservatives attack the Democrats for breaking with Senate tradition by not allowing an up-or-down vote. Even the venerable Bob Dole makes that argument in a New York Times op-ed piece. Now, I won’t get into arguments as to whether or not Republicans filibustered anyone back in the 1960s. To me, that seems to be missing two points. First, the Senate does have a long tradition of killing nominations in committee. In fact, this tradition reached new heights when that Religious Right poster-child, John Ashcroft, was chairman of the Judicial Committee under Clinton. And of course, any candidate killed in committee never gets an up-or-down vote on the floor of the Senate. In fact, there has also been a long-standing tradition that any member of a state delegation can veto any nominee from his/her home state. Its called “blue-slipping” a nominee, and it was a tradition that the Republican majority made a conscious decision to ignore when Bush came into office. Four of Bush’s nominations have been filibustered because of that violation of Senate tradition. Sadly, Mr. Dole did not mention any of this; I would have been very interested in hearing his response.
Second, remember that Senators and Presidents are strategic actors. It has been in the rules of the Senate that judicial nominations can be filibustered. At the same time, real filibusters are time-consuming and politically costly for both sides. That means, if I know a candidate is going to be filibustered, I have significant incentives to simply kill the nomination before it ever comes to that point. In other words, the filibuster does not actually have to have been used in the past in order to have had a profound impact on which nominees got voted on, because it could very easily have affected who actually got nominated in the first place.
So, to the Republican Party and the Religious Right, don’t tell me about how the Democrats are not playing by Senate tradition, when it was the Republican violation of a different Senate tradition that helped land us in this mess. And don’t be so absurd to use someone else’s violation of Senate tradition to justify a change in two hundred year old Senate rules. Finally, stop preaching about Constitutional violations unless the actual Constitution is being violated, and not merely your own personal interpretation of what the Constitution should say.
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