ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Monday, May 23, 2005

Shredding the Constitution

Thanks to Captain Ed for the text of the agreement.

In the agreement, it clearly delineates how these 14 Senators are abusing the Constitution and usurping power reserved to the Executive Branch:

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.

As I said in my original post - you want to talk about a Constitutional crisis? WE'VE GOT ONE!! This is a power grab by the Senate of the authority of the President of the United States....

When the President (Bush or any future Dem president) nominates someone without the prior consent of the Senate, the Senate will feel obligated to filibuster. This clearly is counter to the Advise & Consent reference in the Constitution and seems to be more along the lines of "the President may appoint individuals to the judiciary, as long as it is the Senate that picks who he nominates."


Also, based on the floor speeches made by the Dems after the compromise, this is clearly a win for them. As I look at all the angles, there's very little for the GOP to cheer about, other than the 3 judges that will now sit on the Appeals court. The dems win politically and legislatively.

See Protein Wisdom for more.. and check out Bench Memos at NRO which has this interesting entry from Ed Whelan (part of which echoes my assertion on the advice & consent clause):
1. The Memorandum of Understanding is silent as to one nomination that is already on the floor, that of Thomas B. Griffith to the D.C. Circuit. It also is silent as to all the other nominations that are already pending but have not yet reached the floor.

All the more reason to think that this MOU marks only a very temporary cooling off. The issue will resurface soon, and it is now crystal-clear which Republicans need, ahem, reinforcement.

2. The Republican signatories' agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories' living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory's determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory's determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute "extraordinary circumstances".

3. The idea that the Constitution contemplates that the President will consult with the Senate before making nominations is belied by the text of Article II, section 2, clause 2, which provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges. As a matter of basic grammar, the phrase "by and with the Advice and Consent of the Senate" plainly modifies "shall appoint," not "shall nominate." And the idea that consulting Senate Democrats about prospective nominees would somehow have any value is ludicrous.

Now, will the spineless republicans live up to their side of this faustian bargain and keep the Dems feet to the fire? Given that Pryor, Ownes, and Brown do not meet the "extraordinary" threshold of the Dems, any future nominees can have a similar amount of vitriol spewed by the Dems and still not meet the "extraordinary" threshold.

I won't hold my breath...

Patterico is discussing where we go from here with the republicans that signed on to this sham... and what he thinks the Dems will do on the next USSC nominees.

By the way, if you've struck a compromise with the other side and the guy standing next to you is a former Kleagle of the Klu Klux Klan, you might be making a mistake. Just my two cents.

Your Co-Conspirator,
ARC: St Wendeler