But it’s not activist...
The QandO Blog
Posted by: Dale Franks
Tuesday, May 10, 2005
Michael Schwartz, a partner in the law firm of Wachtell Lipton, comes up with a novel approach to nominating federal judges, and leaving the filibuster rule intact.
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It is readily demonstrable – on "plain language" interpretive grounds—that the Constitution does not require anything more than a simple majority of the Senate to confirm the President’s nominee to the bench, and does not permit the Senate to impose any larger numeric requirement.
Article II, which vests the "executive Power" in the President, also enumerates a number of those powers. There is a sentence in Paragraph 2, Section 2 of that Article that does two things: first, it empowers the President to make treaties "with the Advice and Consent of the Senate...provided two thirds of the Senators present concur";
and second, it empowers the President to nominate "Judges of the supreme Court and all other Officers of the United States [which include lower-court federal judges]..."and to appoint them "by and with the Advice and Consent of the Senate." The appointment power is not qualified by a two-thirds proviso, as the treaty power is.
Accordingly, under elementary principles of construction, where in the same sentence of the same paragraph of the same Section of the same Article, one clause requires a supermajority to concur, and another does not, the omission in the second sentence must be deliberate. In other words, the omission in the second sentence reflects the Framers' determination that no more than a simple majority of Senators needs to "Consent" before the President is authorized to make the appointment.
Reading the Constitution in this fashion – which is not an artful, or creative, or "activist" interpretation, but Plain-Language Interpretation 101 – all that is constitutionally required is that the leadership hold a floor vote, any floor vote, that permits the Senate to express its view on the President’s nominee, and that a majority "consent." No particular mechanism is constitutionally required; let it be a failed cloture vote, for all that it matters.
The President should then make the appointment, and it’s on to buying robes and picking clerks.
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Essentially, he's arguing that absent a floor vote that specifically denies Senate approval to a nominee, the nomination should stand.
Intellectually, I agree with that interpretation. The President has the sole power to make appointments, and the Senate's only role is to deny their consent as a check on the president, if they feel it necessary.
There's only one problem with that interpretation: That's not how we've historically done it. We've always had a floor vote for a positive approval of nominees, rather than assuming a nomination is valid without a negative check from the Senate. No matter that there's no specific requirement for us to do it that way, it's just the traditional way of doing things. New nominees do not take their place until the Senate gives an explicit approval.
But, and this is the interesting part, there's no specific mechanism, other than tradition, for the way nominations are handled. Theoretically, the president could simply order his nominees to take their positions on the court, and explain to the American people that, absent a vote to deny the confirmations, he considers the appontments valid under his constituional authority to make appointments. He would have to further explain that even a failed cloture vote constitutes "consent" if a majority voted it.
But, it would be a rash president indeed, who made such a decision. It would set off a constitutional crisis, which would seem an extreme way to go about preserving the filibuster rule. At the very least, the Supreme Court would have to settle the issue, because the lawsuits would start flying the same day the President made the announcement. And the arguments from the Democrats would be quite a simple one: 1) The Senate, absent an actual confirmation vote, has not given its consent as the Constitution requires, 2) no appointments are valid unless a positive vote for confirmation has been held, and 3) a majority vote for cloture is not "consent" because a cloture vote is a vote to invoke a Senate rule to end debate, not a vote on the suitability of a nomination.
That is how the advice and consent clause has been interpreted since 1787, and the likelihood is quite high that the Supreme Court would so rule.
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