ConfirmThem

By Feddie Posted in Circuit Courts — Comments () / Email this page » / Leave a comment »

I have questioned for some time whether it is constitutionally permissible for the dems to filibuster President Bush's judicial nominees, but most of the lawyers I've spoken with don't seem to be as troubled (pointing, understandably, to the Senate's right to make its own rules). The problem with that argument, as I see it, is that the text of Article II, Sec. 2--i.e., "[The president] . . . shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court, and all other officers of the United States . . . ."--would appear to impose an obligation on the entire "Senate" to advise the president with respect to his judicial nominations. Indeed, it seems fairly clear to me that the foregoing text outlines the process by which justices/judges are to be considered; and a filibuster of a judicial nominee prevents that mandated constitutional process from taking place. In fact, I was just having this debate last night over at the Greedy Clerks Board.

Anyway, Mama Feddie (a staunch dem) emailed today with a link to this post by John Jay Hooker, a Vandy law grad and long-time dem activist (who has been a thorn in the side of many a Republican), in which he outlines his reasons for concluding that the Senate dems' judicial filibuster tactic is patently unconstitutional:

Sen. Frist has every right, and indeed the duty, to see that every presidential nominee for the Federal bench at every level gets an up or down vote. That is the constitutional requirement, notwithstanding the fact that the Senate for 200 years has failed to acknowledge the constitutional requirement set out in Article II, Section 2, Paragraph 2, which mandates that the Senate advise and consent with respect to all judicial nominees. The requirement is for an up or down vote and a majority of the Senate can confirm any nominee. A filibuster designed to prohibit an up or down vote is in effect a "pocket veto" and is unconstitutional.

The Constitution was written by 55 educated and highly intelligent men in Philadelphia in 1787, but it was written so that it could be understood by people of limited education and modest intelligence. It was those ordinary people who ultimately ratified the Constitution and made it the fundamental law of the land.

It is preposterous that the current members of the United States Senate and all of their predecessors for more than 200 years haven't been able to read the Constitution and do what it says. Article II, Section 2, Paragraph 2, of the Constitution gives the President of the United States the exclusive power to nominate all Federal judges and the exclusive power to appoint them subject to confirmation of these judges by a majority vote of those who wish to advise and consent in the Senate.

The Senate has the right to make its own rules under Article I, Section 5, of the Constitution, but it does not have the right to make a rule, i.e., Senate Rule XXII, permitting filibusters and requiring a super majority of three-fifths to stop a filibuster before the Senate can proceed to an up or down vote on each judge. It is obvious to anyone who can read that Senate Rule XXII is in direct conflict with Article II, Section 2, Paragraph 2, and, accordingly, is unconstitutional as it violates the fundamental law.

Therefore, Sen. Frist as the Majority Leader and, even more importantly, the President of the United States who nominated these judges, and the judges themselves, who likewise have the right to an up or down vote, are entitled to confirmation if a majority of the Senate favorably gives its advice and consent.

The so-called nuclear option or the constitutional option is not necessary. The legitimate option is the option that Sen. Frist has to make a motion that Senate Rule XXII is unconstitutional. There is no need to violate Senate Rule XXII as the nuclear option requires because Senate Rule XXII is unconstitutional and the Senate should forthwith so declare. Therefore, Sen. Frist has the absolute right as the Majority Leader to make a motion for the Senate to declare Senate Rule XXII unconstitutional. Senate Rule XXII should be taken off of the books so it can no longer be the poison for the SenatorsÂ? minds that so agitates them that they can't agree on the time of day or adhere to the plain language of the Constitution of the United States.

Any Senator on either side of the aisle who votes against declaring Senate Rule XXII unconstitutional either canÂ?t read or is so prejudiced that he or she can't see the truth. However, if there are enough who can't read or can't see the truth to defeat the motion, then Sen. Frist should take this matter to the Supreme Court of the United States which has the jurisdiction to issue a Declaratory Judgment as to whether or not Senate Rule XXII is unconstitutional.

Our democratic-representative-republican form of government demands in the future that the Judicial Branch of government and the Legislative Branch of government and the President of the United States function in accordance with the constitutional mandates. In this instance, the constitutional mandate is that the President has the right to nominate, the Senate has the right to advise and consent subject to a majority vote, and, likewise, the judges who have been nominated are entitled to an up or down vote on their nomination.

Therefore, any compromise that does not provide for the aforesaid violates the Constitution. That's why I claim -- SENATOR FRIST IS RIGHT AND THE COMPROMISE IS WRONG!

Well, I don't necessarily agree that the issue is as clear as Mr. Hooker seems to believe; but I like his style. :)

(cross-posted at Southern Appeal)