Friday, March 18, 2005

What the Constitution Requires for Judicial Appointments

Article II, Section 2 of the U.S. Constitution gives the requirements for appointing federal judges. "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court ... ." This provision also applies to judges of lower courts.

First off, the text makes clear that the President alone has the power of nomination. The placement of the "advice and consent" clause after the word "and" shows the intention of the framers that the clause modifies only the following verb "appoint" and does not modify "nominate". A reading of the plain language of the text reaches the same conclusion for the same reason. Consequently, despite what some Democrat senators contend, the President need not seek anyone else's advice or consent in determining or making judicial nominations.

Before appointing a judge, the President must obtain the advice and consent of the Senate. The Senate gives its advice, in effect, while weighing the merits of giving its consent to the nomination.

The Senate's consent requires only a majority vote. The preceding language in Section 2 expressly requires a super majority of two-thirds for Senate consent to a treaty. The absence of any super-majority requirement for Senate consent to appointments shows that a simple majority of the Senate is sufficient.

Democrat senators today argue that they have a right under the Senate's rules of procedure to block a nomination with a filibuster, which requires a 60% majority to cut off debate. Filibusters are not addressed by the Constitution, but Article I, Section 5 allows the Senate to make its rules of procedure. Permitting the Senate through its procedural rules to override the Constitution's requirements seems to conflict with the concept of the Constitution as the law of the land and with the Constitution's requirements for amendments.

As a practical matter, this conflict will be subject only to the Senate's own sense of what it should do. The Senate is likely to be the final arbiter of its rules and rule changes, and the courts will not likely step into an inherently political arena to try to tell the Senate how to conduct its business. As a result, whatever the Senate does regarding its rules for debate on judicial nominations, will probably be conclusive. The inherent political nature of the Senate debate process and the Constitution's grant of power to the Senate to make its rules makes it highly unlikely that any court will enter the controversy, except possibly to bless whatever the Senate does.

No court can force the Senate to take a vote. No court is likely to try to tell the Senate how to interpret its rules or how to conduct its business. Thus, the Senate, and the Senate alone, will determine whether it may by a procedural rule require a super majority to end debate on a judicial nomination. In effect, the Senate will decide whether it may require a super majority to consent to a nomination. However, once the Senate votes on the nomination itself (versus a vote on ending debate), the courts may be in a position to determine whether the Senate did give consent.

The above discussion is a brief overview. Each small piece of the issue may be discussed endlessly. In a nutshell, the Constitution requires for a judicial appointment that: (1) The President must nominate a person to sit on the federal bench; and (2) the Senate, acting in accordance with whatever it decides its rules are, must consent by majority vote to the appointment of the nominee.

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