ConfirmThem

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

Whatever else this deal may be, it is a gross distortion of the Constitution, by people who should know better. Here's the pertinent part of the deal:

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice" speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

You don't have to be a lawyer to know this is wrong. You just have to know how to read. Here's what the Constitution says:

[H]e 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....

The advice comes after a person is nominated. It's clear as day. Once a person is nominated, then the Senate must not only passively consent to the appointment, but must also actively advise that the nominee be appointed. Every shred of evidence from the drafting of the Constitution emphatically supports this view that the word "advice" in this clause has nothing to do with what happens prior to a nomination. These signatories have just decided to summarily reject the intended meaning of the Constitution. Their "deal" is obviously intended as a threat --- if the President does not seek prior review of his nominees before they are nominated, then these signatories will allow filibusters in that "extraordinary" situation. This is unconstitutional blackmail.

UPDATE: I must admit that it is possible to look at the "We believe..." sentence (in the deal) as being completely independent of the "We encourage..." sentence. But, that's quite a stretch.