Tuesday, May 24, 2005

Senate Compromise - Advice and Consent

The signatories to the compromise try to limit the President's discretion to make judicial nominations. The text of the agreement says,
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.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

First, the senators misconstrue, perhaps deliberately, the "advice and consent" clause. It reads, "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." Using oridnary construction of the English language, the "advice and consent" clause modifies only "shall appoint" and does not modify "shall nominate". The President, whether this President or any past or future President, has the power to nominate whomever he pleases without consulting the Senate. That is, the Constitution vests the power of nomination solely in the President, but the Constitution limits the President's power of appointment by requiring the advice and consent of the Senate.

Second, the senators misread history if they believe that "the early practices of our government" included "consult[ing] with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration". This recommended practice would be a departure from current and historical practice.

Third, this part of the agreement seems to give the Democrats something they no doubt crave--a provision they can cite as a bipartisan slap at President Bush. That is, all the current rancor was caused by President Bush, not by the Democrats who were defending the country against extremist judicial nominees.

Finally, the President did not agree to this provision. Neither President Bush nor his successor, whether Republican or Democrat, will agree to this limitation on the President's prerogative to choose judicial nominees.


Blogger d nova said...

senate consultation on nominations is a red herring.

the issue is whether the senate is required to vote nominees up or down.


8/11/2005 07:07:00 PM  

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