Advice and Consent

There’s a lot of ink being used, and a lot of talk, over the past few years about the appointment of justices to the federal courts. Or, perhaps, you could say, the refusal of the US Senate to ratify a certain few of the appointments of the president bush.

The Enlightened One and Font of All Wisdom, since he became the president bush, has made a large number of appointments to the federal courts. I think I remember 200+, and I don’t feel like looking up the number right now. Out of those, a handful have been refused the consent of the US Senate. I don’t feel like looking up that number either. You can if you want, but trust me, my numbers are close enough.

By the way, the reason for the large number of vacancies existed because of the large number of appointments by the Clinton administrations that were refused consent of the republican controlled Senate.

So, what all this fuss is about, to put it in perspective, is, at the most, 2% of bush’s appointments. For those who worship money, that’s 2 cents on the dollar. This is what the right-wing whacko bushistas are wanting to destroy the last of any checks on their power, the filibuster, over. This rule of the Senate (a change of the rules require a 2/3’s majority) allows 41 senators to indefinitely continue debate.

A number of senators and pundits declare that the president deserves “an up or down vote” on his appointments. That’s not what the Constitution says. In fact, Article II, Section 2, Clause 2, says “… and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …”. I don’t see anywhere in the Constitution that says they have to even vote on his appointments if they don’t consent to them.

If the president bush can’t muster 60 votes in the Senate, the number needed to overcome a filibuster, than I would have to say that the Senate does not consent to the appointment before them. And that is the end of it. Or should be. Because what all those pundits are forgetting about is the advice part. I would say that 41 Senators telling the President that they will not consent to the appointment is pretty strong advice to the President that he needs to find another candidate.

It is the arrogance of the president bush that led him to reappoint those candidates who were previously refused. This has led us to the situation in which we find ourselves today. We now have Senators who will say that the filibuster does not apply to judicial appointments. What the hell were they doing in their Civics classes? Those who are old enough can remember their Civics classes in school. Under the rules adopted by the Senate regarding filibusters, they apply to any and all measures brought before the Senate. Period.

If they wish to change the rules, they can round up 2/3’s of the Senate to do so. Anything else would violate their own rules, and would thereby be unconstitutional. Remember that all Senators took an oath to defend the Constitution. To knowingly, and with forethought, violate the Constitution is a violation of their oath of office, and is cause for removal. Again by the Senate’s own rules.

Both parties have used the filibuster to stop both good and bad legislation and appointments. It is this procedure that defends the American people from the tyranny of the majority, and is an important part of the checks and balances I learned in Civics. To remove it, would remove the last vestiges of democracy in this country.

And now, I’d like to say a word about recess appointments. The Constitution does indeed give the President the power to make appointments when the Senate is in recess, but the language of the Constitution “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”, gives him that power ONLY when the vacancy occurs during the recess, not one that has carried over from when the Senate is in session, and especially not one that the Senate has previously refused consent to.

References:

The New Century Dictionary of the English Language
Copyright, 1946, by
D. Appleton-Century Company

I use this dictionary because it was written when words still meant what they appeared to mean, and most rational people agreed on that meaning.

advice – an opinion recommending a course to be followed
assent – To agree, as to a proposal or a statement, by expressing acquiescence or admitting truth
consent – to give assent, as to a proposal; agree; comply or yield
filibuster – a member of a minority in a legislative assembly who resorts to irregular tactics to prevent the adoption of a measure or procedure favored by the majority (US)
to filibuster – to act as a filibuster

Constitution of the United States
Adopted by convention of States, September 17, 1787;
Ratification completed, June 21, 1788

I use this document because it is, well, the Constitution of the United States.

Article II: The Executive Branch
Section. 2.
Clause 2:
… and he 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, and all other Officers of the United States, …

Clause 3:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article I: The Legislative Branch
Section. 5.
Clause 2:
Each House may determine the Rules of its Proceedings, …