Advise and consent

It's time to play everyone's least favorite gameshow: Charitable Exegeeesis!

Contestants, your challenge is to explain what how "advise and consent" means "up or down vote on judicial nominees." Remember, you don't have to believe your answer--the leading exponents of this view certainly don't believe it. 

Special bonus points if you can weave entrechment into your answer.

Comments

[Fitz]

Duh...if you can filibuster - you can filibuster forever. NO consent there.
A "right to unlimited debate" don’t mean Unlimited debate.

Learn two things (and come back and talk) – The difference between controlling the Senate (& therefore committee’s) and blocking Judges that way. Now compare that with being in the minority and using the filibuster in an unprecedented manner like this.
Now learn the difference between a Executive calendar & a Legislative calendar.
Now imagine this new precedent holds – Minority Veto’s on Appellate court nominee’s from now on…
Look I’m going to repeat my post from down below until you see how this is as destructive of an escalation as possible. (with only one more notch – the Supremes)

But those are not the extent of the rules.
There are other procedures that can be applied in the event of extreme and unprecedented manipulation by a block of Senators.
One such option allows for a ruling from the chair declaring a practice unconstitutional.
Since this practice IS arguably so....
then so be it.

(all B.S. aside- no one can be this blind...can not you see the simple reality that this turns the confirmation process on it head..
Do you really want ...from now on... a mere 40 senators to be able to have an effective veto power over judicial confirmations?
An effective 60 vote supermajority?
Why do you think filibustering for this length...this many appointments ...is unprecedented...
Should they have filibustered Thomas.?.
What about Learned Hand?, Thourogood Marshal?,
Oliver Wendell Homes?, Earl Warren?
This is an escalation - a receipt for luke warm Judges....

[j swift]

If take the those three words literally and without any of the 200+ years of historical context, you could argue that this means the Senate always accepts the nominee and it would be up to the President to withdraw the nominee if the advice of the Senate was negative or at least negative enough to give a rational and intelligent person pause. Heh, like that would happen.

[Eli (creepandblink)]

Fitz is right that it is hard to imagine an American judiciary without such giants as Homes and Thourogood Marshall. I'd throw in Brinnin, Cartosa, and a few others there...

[Fitz]

Can anyone tell me WHY? the democrats are expending all this political capital to block these Judges?
Why the big deal for some judges..
Breaking the law...?
Breaking the rules..?
Unconstitutional...?
A break with tradition?

Such words...why O' why is this so important...
Can someone tell me why..
(and try not to use the word "extreme")

Such words...why O' why is this so important...
Can someone tell me why..
(and try not to use the word "extreem")

[Fitz]

Funny Eli - No really :)

[Evil Steve Brady]

[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 . . . .

Shall means shall. Some of the seats the President is trying to fill have been open for years. Democrats could theoretically hold out until the entire judiciary, including the Supreme Court, dies off. This is clearly contrary to the original intention to have a judiciary. They have sworn to uphold the Constitution, but by filibustering they are preventing the President from fulfilling his constitutional duties. Contrast this with the use of the filibuster in legislation, which Congress has no affirmative duty to pass any of.

[Fitz]

Nice steve - the long and short of it

[ktheintz]

How silly. The President could end the impasse in a heartbeat by nominating judges acceptable to 60 senators. There's simply nothing in the Constitution that says that elected Senators have to defer to the president's wishes on appointments. The "Each House shall make its own rules" provision is, by contrast, utterly without ambiguity.

[Evil Steve Brady]

Ah, but notice this. Here's the full passage of Article II, Section 2, Clause 2, with my emphasis:

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, 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.

So he has power to make Treaties, but no obligation. By contrast, he has to nominate Supreme Court judges (or lower federal judges if Congress creates a seat). In the case of the Supreme Court, its own existence is mandated by the Constitution and is not created by Congress.

If Congress, as a separate entity, decides that all the President's picks are unacceptable to it (if the Senate and House happen to be getting along), then it can eliminate the empty seats. But particularly with Supreme Court vacancies, the filibuster allows a minority to indefinitely prevent the President from fulfilling his obligation to fill those seats.

[Steve Brady]

Wow, it's a good thing that argument started falling apart at the end. I was almost beginning to believe it B)

[Walt Pohl]

The vacancies were created by Clinton-era Republican Congresses refusing to "advise and consent" to Clinton nominees. If it's unconstitutional now, it was unconstitutional then. Or does the Constitution only apply when it works in favor of the Republican party?

[DaveL]

I think the word you were looking for is "exe-Jesus," and the explanation is that anything goes when God is on your side.

[Killer]

I'm sorry. If the constitution says "senate, make your own rules", then, by definition, no senate rule can be un-constitutional. In fact, it seems to me that cogressional rules are right below thc constitution itself and treaties as the law of the land.

[Eli (creepandblink)]

Killer: that's just not the way the jurisprudence has gone, and with good reason. We can all agree that there has to be some anti-entrenchment doctrine. Imagine, for example, that in 2011 there are 67 Senators of Party X, but in the 2012 election 18 of them lose their seats - then, in the interim, they pass a series of new Senate rules making it effectively impossible for the incoming Senate to implement their agenda - say, they change the cloture requirement to 90% for all debates on explicit repeals and 95% on future rule changes. It'd be a nightmare and undemocratic. Entrenchment is a very old doctrine, and one that we've taken as borrowed into our own legislative system - I don't think it's ever really been argued that the constitutional grant of rulemaking authority completely eliminated or foreswore it.

[hilzoy]

Well, to quote myself on the pitfalls of this interpretation:

To read it as requiring that the Senate "advise and consent", one would have to read the Constitution not as placing a condition on the success of appointments, but as instructing the President to nominate and the Senate to advise and consent. If one wanted to avoid the bizarre conclusion that the Constitution instructs the Senate to approve all the President's nominations, one would also have to read "consent" as meaning not "give permission for something to happen" (the Oxford US Dictionary on my computer) or "to give assent or approval" (Merriam-Webster), but as something more like "giving or withholding assent". This would be at odds with usage both now and in 1789, and would in addition make various other bits of the Constitution nonsensical. (Consider the Third Amendment: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." On this reading of 'consent', the Third Amendment would mean: soldiers cannot be quartered in someone's house unless that person has agreed or disagreed that they can be quartered there. Consider the thrilling new interpretation of the claim that the police cannot search your house or your person without a warrant, unless you consent. Consensual sex would include rape, as long as the victim protested explicitly. The possibilities are endless.)

[Flint]

There are constituional scholars coming down on both side of the argument. One of the earlier post talked about entrenchement as if there were no mechanism for change of the Rules... but there are and that is at the heart of the debate.

Senate Rules and Precedents That Would be Broken Through Exercise of the Nuclear Option

Violation # 1. Rule V: The Senate must follow its Rules to amend its Rules
Paragraph 2 of Rule V states expressly that “Rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these Rules.” (emphasis added). The proposed nuclear option is a deliberate end-run around the Senate’s regular process (discussed below) for amending its own Rules because Senator Frist does not have the strong bipartisan support he needs in the current Senate to follow the regular order.

Violation # 2. Rule V: Suspending the Rules without amending them.
The Senate Rules provide expressly for the sole mechanism to suspend the Rules without amending them. Under Rule V, paragraph 1, the Senate may only suspend its Rules either by unanimous consent or by adopting a motion to suspend the Rules. Adoption of such a motion requires a 2/3 vote of Senators present.3 The nuclear option, by relying on a simple majority vote to change the Rules without changing the text (arguably a kind of suspension), clearly violates the 2/3 vote requirement.

Violation # 3. Rule XXII: Violating the process for changing the Senate’s Rules.
Paragraph 2 of Rule XXII establishes the requirements for ending debate on a proposed change to the Senate’s Rules. Under Rule XXII, a cloture petition signed by sixteen Senators must first be submitted to the Senate. The vote to invoke cloture (end debate) on amendment to the Rules cannot be held until 2 days after the cloture petition is filed, and the rule provides that 2/3 of Senators present and voting must consent to end debate.

Violation #4. Failing to submit a constitutional Point of order to the Senate.
Proponents of the nuclear option purport to justify their unprecedented approach by invoking the U.S. Constitution – to the point of trying to rename the nuclear option the “constitutional option.”4 Some have even argued that the filibuster of judicial nominations is unconstitutional, and that the Senate can therefore ignore its process for amending the Rules to eliminate it.5 Under long-established precedents of the Senate, when a point of order with an asserted constitutional basis is raised, the Chair does not rule on the point of order but instead submits it directly to the full Senate.6 However, such a point of order is debatable and it would take 60 votes to end debate on the constitutional point of order and bring it to a vote. Because it is not clear that Senator Frist has 51 votes for the nuclear option – much less 60 – it is likely that Vice President Cheney will rule directly on Frist’s “constitutional” point of order, violating Senate precedent.

Violation # 5. Rule XXII: Ending debate on a nomination.
The text of Paragraph 2 of Rule XXII expressly requires 60 Senators (3/5s of Senators duly chosen and sworn) to vote to end debate on “any measure, motion, other matter pending before the Senate,” including a judicial nomination. If the nuclear option is successful, and for the first time in our history Senators’ right to debate is ended by simple majority vote, this will constitute an express violation of Rule XXII’s 60 vote requirement. In essence, Rule XXII would be changed, but not in a manner provided by the Rules of the Senate.

Violation # 6. Overriding the Senate’s Parliamentarian
The Senate Parliamentarian is the officer charged with keeping the precedents of the Senate and advising the presiding officer of the Rules and precedents of the Senate if a point of order is raised from the floor. The current Parliamentarian, Alan Frumin, has worked for that office as either Parliamentarian or assistant Parliamentarian since 1977 under both Democratic and Republican majorities. It has been widely reported that the Senate Parliamentarian will advise the chair that any point of order to force a simple majority vote to end debate on a nominee would violate the Rules and precedents of the Senate. Therefore, for the nuclear option to succeed, the presiding officer, most likely Vice President Cheney in his role as President of the Senate, would have to ignore the advice of the Parliamentarian in ruling on a point of order. According to the nonpartisan Congressional Research Service, such an action would “constitute an extraordinary proceeding involving peremptory departure from the established system of Senate procedure.”7

Vice President Cheney will need to ignore the Parliamentarian to invoke the nuclear option because Republicans must engineer a scenario where, as stated above, nuclear option opponents appeal a ruling of the chair endorsing the nuclear option. Frist must ensure that opponents appeal because the appeal itself is debatable, while a motion to table (kill) the appeal is not debatable. If Republican leaders try to overturn an adverse ruling by the chair through their own appeal (which would occur if the chair follows the parliamentarian), opponents could simple filibuster the appeal and a motion to table the appeal would set the opposite precedent than Frist wishes to achieve.

Conclusion:
Filibusters of judicial nominations are clearly authorized by long-established Rules and precedents of the Senate. Should Senators wish to change the Rules and eliminate the filibuster, they should do so under the established process for amending the Rules. Basic notions of the rule of law, fairness, and commonsense dictate that the Senate should obey its rules in confronting and addressing filibusters as it has done for over 200 years.8 Senate Republican leaders have avoided this approach, because they do not have the 67 votes required to amend the Rules under the process specified by the Rules. Instead, in an abuse of power unprecedented in Senate history, they plan to break the Rules in an attempt to change them for momentary partisan advantage. As many Senate veterans of both parties have warned, such a precedent starts the Senate down the road of eliminating all filibusters through future “nuclear options,” completing the institutional destruction begun by the current nuclear option.

The funny thing was Frist's comments on the filibuster:

"This morning on the floor of the Senate, Sen. Chuck Schumer asked Majority Leader Bill Frist a simple question:

SEN. SCHUMER: Isn't it correct that on March 8, 2000, my colleague [Sen. Frist] voted to uphold the filibuster of Judge Richard Paez?

Here was Frist's response:

The president, the um, in response, uh, the Paez nomination - we'll come back and discuss this further. Actually I'd like to, and it really brings to what I believe - a point - and it really brings to, oddly, a point, what is the issue. The issue is we have leadership-led partisan filibusters that have, um, obstructed, not one nominee, but two, three, four, five, six, seven, eight, nine, ten, in a routine way.

So, Frist is arguing that one filibuster is OK. His problem is that several Bush nominees have been filibustered. This position completely undercuts Frist's argument that judicial filibusters are unconstitutional. (Which is, in turn, the justification for the nuclear option.) If judicial filibusters are unconstitutional there is no freebee."

Courtesy of Kos

[Flint]

If there any of you at MSU who can devote some time to provide remedial reading assistance to Fritz... it would really be a blessing.

[Alex]

I don't see the need for any confusion here. Kerry summed this up for us during the runup to the election. To rephrase his words to fit the current situation...

"I voted for the nominees before I voted against them."

See, you can have it both ways!

[Flint]

You mean sort of like...

"I'm a kinder, gentler conservative" until I'm a radical right wing religious zealot?

or

"I swear to protect and defend the laws of the United States of America"... unless they get in my way and then all bets are off.

or

"I'm spreading democracy and freedom" while expanding the Patriot Act to deny civil liberties and shred the Bill of Rights.

[mds]

"I voted for the nominees before I voted against them."

See, you can have it both ways!

Well, this is actually better described nowadays as the "Voinovich Maneuver," since to be properly analogous to Mr. Kerry's actions it would otherwise have to be,

"I voted for other nominees for this position before I voted against these nominees."

See how much better of a fit Senator Voinovich's reasoning is?

Oh, back on topic:

The Constitution instructs the Senate to "advise and consent," which clearly mandates that all Presidential nominees deserve an up-or-down vote of the full Senate if the Presidency and the Senate are controlled by the same political party whose name starts with the letter "R".. Anything else would be thwarting the wishes of the bare majority of people who elected the President, as well as the minority of total Senate election voters that elected 55 Republicans. Just because Washington, Adams, Jefferson, and Madison didn't believe that rules allowing unlimited debate in the Senate were unconstitutional, doesn't mean that we don't know better today. Oh, and "entrenchment."

[Flint]

The "up and down vote" argument is bogus because no where does it appear in the constituion.

The "prohibiting the Advice and Consent" argument is also bogus because the Senate is not bound to approve the President's nomination. It has been accepted practice that no vote is tacit unapproval and a message to the President... send up a nominee that is less ideologically extreme.

This is where the GOP's hypocrasy is seen best because of their "Blue slip" or "Pocket Filibuster" denial of 69 Clinton nominees, as well as Frist's own approval of a republican judicial filibuster.

While the "entrenchment" issue is open to legal debate the rules of the Senate on how to get to it are not... hence the Senate Parlimentarian's position that it is "unconstituional" in regards to the "Nuclear Option." Which is why Frist doesn't intend to call on him as he has stated.

[(: Tom :)]

I'm sure you meant entrenchment, not entrechment (since the word doesn't exist). So here goes...

advise can be translated as up or down vote;

and can be translated as on;

and

consent can be translated as judicial nominees.

So, by direct translation, advise and consent becomes up or down vote on judicial nominees. See how easy that was?

Hey, it came to me in a vision while reading the Koran Bible the other day. I was wondering how I would get a chance to disseminate this wondrous message to the rest of the world. If it wasn't for the entrenchment of so many godless liberals in the reality-based community, it would be taught in schools today!

[Flint]

I suppose you're right... if it weren't for the checks and balances in the constitution we might have religion taught in schools... sort of like the way it was in 1933.

Hitler said on signing the Nazi-Vatican Concordat, April 26, 1933:

"Secular schools can never be tolerated because such schools have no religious instruction, and a general moral instruction without religious foundation is built on air; consequently all character training and religion must be derived from faith . . ."

On October 24, 1933, in a speech in Berlin, Hitler said:

"We were convinced that the people need and require this faith. We have therefore undertaken the fight against the atheistic movement, and that not merely with a few theoretical declarations: we have stamped it out."

In a speech at Koblenz, August 26, 1934, Hitler said:

"National Socialism neither opposes the Church nor is it anti-religious, but on the contrary it stands on the ground of a real Christianity . . . For their interests cannot fail to coincide with ours alike in our fight against the symptoms of degeneracy in the world of today, in our fight against a Bolshevist culture, against atheistic movement, against criminality, and in our struggle for a consciousness of a community in our national life . . . These are not anti-Christian, these are Christian principles!"

---------------------------
From the Lansing State Journal newspaper (Lansing, Michigan) of February 23, 1933.
HITLER AIMS BLOW AT 'GODLESS' MOVE

Chancellor's Forces Seek the Catholic Support for Latest Campaign

BERLIN, Feb. 23 (AP)--A campaign against the "godless movement" and an appeal for Catholic support were launched Wednesday by Chancellor Adolf Hitler's forces. They struck at two of his formidable opponents in the March 5 elections, the first at communists and the latter at the allied Catholic parties.

Meanwhile five more persons were killed and scores were injured Tuesday night in the incipient civil war which has been waging since Hitler's rise to power. This brought the number of deaths in political clashes since the first of the year, when Hitler began negotiations for the chancellorship, to about 70.

A campaign against the "godless movement" was announced by Bernard Rust, nazi commissioner for education and culture in Prussia, in an address Tuesday night before students at the technical university here. He said the details would be revealed in the next few days. In his speech opening the campaign for the reichstag and Prussian diet elections, Hitler attacked communists for the spread of atheism.

An appeal to Catholic nazis was printed Wednesday in Hitler's Voelkischer Beobachter, assailing the Catholic centrist and populist parties. It recalled the papal encyclical of January 9, 1928, which admonished priests to serve the religious interests of the nation and not to affiliate with political parties. Hitler, himself, is a Catholic.

Nazis invaded a centrist campaign meeting at Trier but were repulsed after a stiff fight. Several persons were injured at Kiel and Opladen in nazi-reichsbanner clashes.

[Daryl McCullough]

Fitz writes: Do you really want ...from now on... a mere 40 senators to be able to have an effective veto power over judicial confirmations?

Uh, yes, I do.