ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

John D. Podesta and Mark D. Agrast have just published an essay titled, "Back from the Brink: A Conventional Alternative to the Nuclear Option." They urge President Bush to be more deferential to the Senate minority. Unfortunately, Podesta and Agrast rely upon a very shaky understanding of history. They write:

In 1792, George Mason wrote to James Madison, "The Word 'Advice' here clearly relates to the Judgment of the Senate on the Expediency or Inexpediency of the Measure, or Appointment; and the Word 'Consent' to their Approbation or Disapprobation of the Person nominated; otherwise the word Advice has no Meaning at all."

In reality, George Mason was writing to James Monroe, not to James Madison. Moreover, Podesta and Agrast have ripped the quote out of context:

I am decidedly of opinion, that the Words of the Constitution "He shall nominate, and by & with the Advice and Consent of the Senate, appoint Ambassadors" &c. give the Senate the Power of interfering in every part of the Subject, except the Right of nominating. There is some thing remarkable in the Arangement of the Words "He shall nominate." This gives to the President alone the Right of Nomination. And if the Senate were to refuse their Approbation of the person nominated (which the subsequent Part of the Clause puts in their Power) they wou'd have no Right to nominate another Person; the Right of Nomination being complete in the President. "And by and with the Advice & Consent of the Senate appoint Ambassadors" &c. The Word "Advice" here clearly relates in the Judgment of the Senate on the Expediency or Inexpediency of the Measure, or Appointment; and the Word "Consent" to their Approbation or Disapprobation of the Person nominated; otherwise the word Advice has no Meaning at all--and it is a well known Rule of Construction, that no Clause or Expression shall be deemed superfluous, or nugatory, which is capable of a fair and rational Meaning. The Nomination, of Course, brings the Subject fully under the Consideration of the Senate; who have then a Right to decide upon it's Propriety or Impropriety. The peculiar Character or Predicament of the Senate in the Constitution of the General Government, is a strong Confirmation of this Construction.

It could not be plainer that Mason regarded the Senate's constitutional advisory role as beginning after the President nominates a nominee. This principle is embodied in the Senate's own rules; Rule 31, Section 1 requires that the Senate only provide its consent to an appointment if the Senate is also willing to simultaneously advise the President to proceed with that appointment.

Podesta and Agrast have quoted George Mason out of context in order to support their notion that the Senate should be allowed to "help" the president choose nominees. I would argue that the President is under no constitutional obligation to let the Senate "help" choose nominees, much less to let a minority of the Senate do that. Podesta and Agrast seek further historical support for their thesis:

In 1869, President Grant appointed Edwin Stanton to the Supreme Court in response to a petition from a majority of the Senate and the House.

So, if a "majority" of the House and Senate petitions President Bush to nominate a judge, will Podesta and Agrast allow the filibusters to end, even if that majority is comprised of Republicans only? Somehow, I doubt it.

Podesta and Agrast pose this question:

If the president fails to seek advice, should he be surprised when senators are unwilling to give their consent?

The answer is that the President should indeed be surprised if senators are unwilling to allow their colleagues to ever have an opportunity to consent. It's one thing for a Senator to withhold his own consent, but quite another to compel others to withhold theirs. Podesta and Agrast continue:

In a recent speech at the Center for American Progress, the dean of the Senate, Robert C. Byrd of West Virginia, suggested that the White House and the bipartisan leadership of the Senate enter into a formal consultative process that would yield a list of nominees who are broadly acceptable to both sides.
....
As two conservative former senators, Jim McClure and Malcolm Wallop, have written, "It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner."

The only reason why McClure and Wallop expressed that sentiment is because they believe another technique can be used to shut down the outrageous Democratic filibusters of majority-supported judicial nominations. McClure and Wallop advocated enforcing the "two-speech rule" in order to end debate. Others have argued for additionally banning dilatory quorum calls, as the Senate has done in the past. McClure and Wallop most emphatically have not advocated allowing the Senate --- much less a Senate minority --- to usurp the President's nomination power and extort preferred types of nominations from the President, as Podesta and Agrast now seem to be suggesting.

UPDATE: Mark Agrast wrote to me on May 17, to answer this confirmthem post. I then recommended to him the interesting piece by Dan Dalthorp describing why the Framers vested the nomination power in a single person rather than in a group of people. Anyway, here's the May 17 response that I received from Mark Agrast. He asked me to post it here, and I'm glad to oblige....

Dear Mr. Hyman:

Thank you very much for your correction to our recent article on the judicial filibuster. It was, of course, Monroe, rather than Madison, to whom Mason wrote his famous letter, and we are grateful to you for bringing the error to our attention. The article has been corrected.

We do not agree, however, with your interpretation of the passage, or with your suggestion that by excerpting it we have distorted its meaning. Our point was that the Constitution contemplates that the Senate will give the president its advice as well as its consent, and that these are different things. Indeed, that is what Mason says. In suggesting that the Senate may offer such advice at any time, even before the nomination has been tendered, we do not suggest that the Constitution requires this; only that it permits it. Nor do we suggest that by offering its advice the Senate could compel the president to accept it; in fact, we say the opposite. Our argument is not that the president must consider the Senate’s advice, but that he may do so, as was done in the historical examples we cite. There is nothing in the constitutional scheme of advice and consent that requires the process to be divisive and acrimonious, and we believe the nation would be better served by an orderly and consultative process that yields nominees who are confirmable, not by 51 votes, but by a filibuster-proof majority.

Sincerely,

Mark Agrast