ConfirmThem

By DanCT Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

In an article entitled "Efforts of 2 Respected Elders Bring Senate Back From Brink" discussing the deal, Sheryl Gay Stolberg of the NY Times can hardly contain herself:

In the end, it was the language of the Constitution itself and two old bulls of the Senate - Robert C. Byrd and John W. Warner - that averted a grim showdown over federal judicial nominees that had threatened to wreak lasting damage on Capitol Hill.

After weeks of seemingly fruitless negotiations between the two sides, Mr. Byrd, 87, a West Virginia Democrat who has spent more than half a century in Congress, and Mr. Warner, 78, a Virginia Republican who regards himself as an "institutionalist," met privately twice on Thursday. They parsed the language of Alexander Hamilton's Federalist Paper No. 66 in an effort to divine what the founding fathers intended when they gave the Senate the power to advise and consent on nominees. After trading telephone calls over the weekend, they drafted three crucial paragraphs.

The agreement contends that the word "advice" in the paper "speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations." It goes on to state, "Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate."

People on each side of the fight over President Bush's judicial nominees say those lofty principles, articulated by the Senate elders, were instrumental in bringing together 14 senators - 7 Democrats and 7 Republicans - to do what the chamber's leaders could not: draft a compromise.

Amazing what things moderates can find in the emanations and penumbras of the Federalist Papers when they put their minds to it. Have they also stumbled onto a way to put like-minded folk on the Supreme Court?

Bonus points to anyone who can tell me how Federalist Papers #66 implies that the "advice and consent" clause of the Constitution is to apply to the nominations stage, rather than just the post-nomination appointments stage, as a clear reading of the words of the Constitution would indicate? Here is the section of #66 that pertains to the "advice and consent" clause:

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE. They can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

It sounds very much to me like the President nominates, and the Senate either confirms or rejects. When a nominee is rejected, the President sends over another one "and [the Senate] could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected." Sounds to me like the Senate offers "advice" by rejecting a nominee. The President then sends them another one--with no guarantee that they'll like the next one better. It doesn't come close to saying that the "advice" part should apply to the Senate informing the President whom they want see nominated. With hard searching in the emanations and penumbras, though, who knows what might pop up? On other hand, Federalist Papers #76--which deals more explicitly and in greater length about the "advice and consent" clause--discusses the rationale for leaving the power of nomination entirely in the hands of the executive: "one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment." [NOTE: I analyze this in greater detail in an earlier post.] The moderate 14 wouldn't want to read this one, though, because it would shed light on those emanations and penumbras from #66 and expose the 14's argument as fantasy.