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Join Date: Mar 2003
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Continuing Constitutional Obstruction
This articles from CNS News today underlines the insidious and continuing attempts to thwart the Constitution for one's own gains or will, not the will of the people as envisioned by the forefathers.
Democrats ‘Reinterpreting the Constitution’ on Nominations
By Jeff Johnson
CNSNews.com Congressional Bureau Chief
August 13, 2003
Capitol Hill (CNSNews.com) - Senate Democrats have stressed President Bush''s refusal to acknowledge their "constitutional role" in the nominations process as part of the reason most of the senators in their party are filibustering three of his judicial nominees. But legal experts said Tuesday the Democrats are "reinterpreting the Constitution" when they seek to participate in nominations.
Senate Democrats have been vocal about their desire to consult with President Bush before he makes any judicial nomination, but especially should any vacancy occur on the Supreme Court.
"On behalf of the entire Senate Democratic Caucus," Senate Minority Leader Tom Daschle (D-S.D.) wrote Bush in a June 17 letter, "I want to emphasize that we remain hopeful that we would have meaningful, bipartisan consultation in advance of any Supreme Court nomination." [Emphasis added.]
Sen. Patrick Leahy (D-Vt.), who held the chairmanship of the Senate Judiciary Committee before voters gave control of the Senate back to Republicans in the 2002 elections, wrote the president twice, first on May 14 and then on June 11, to urge "meaningful consultation with Members of the Senate...before deciding on nominees." [Emphasis added.]
At the National Press Club on June 26, Leahy hinted at a constitutional requirement that senators be involved in the nomination process.
"Along with Senator Daschle and other Senate Democrats, I have asked the president to consult with leaders in the Senate on both sides of the aisle in advance of any Supreme Court nomination," Leahy said, noting that he wanted to avoid any potential controversy that an "extreme nominee to the Supreme Court" might cause. "That is why I have suggested that the president follow what the Constitution says to do." [Emphasis added.]
Sen. Charles Schumer (D-N.Y.) has been the most outspoken advocate of the president consulting with senators prior to selecting judicial nominees and stating a constitutional basis for such participation.
"I would welcome the opportunity to evaluate any candidates you are considering and provide input before any nomination is made," Schumer wrote President Bush on June 18, "consistent with the Constitution's mandate that the Senate advise the President on judicial nominations." [Emphasis added.]
In the same letter, Schumer complained that the often short time span between the announcement of a Supreme Court vacancy and the announcement of a president''s nominee to fill that position "leaves little time for Senators to fulfill their constitutional duties to advise the President on whom to nominate." [Emphasis added.]
Schumer included this declaration to justify his demands. "The Constitution dictates that federal judges be nominated by the President with the advice and consent of the Senate."
There is, according to several legal scholars who spoke with CNSNews.com Tuesday, only one problem with Schumer''s declaration.
"It''s absolutely incorrect, and it''s unprecedented," said Jay Sekulow, chief counsel for the American Center for Law and Justice. "He is reinterpreting the Constitution."
Todd Young, policy director for the Southeastern Legal Foundation, called the prospect of senators from the minority party seeking, in essence, veto power over a president''s nominees an "abject misinterpretation" of the Constitution.
"It''s absolute hogwash in terms of the manner in which the judges are nominated and then approved for service," he said.
Marion Edwyn Harrison, president of and counsel for the Free Congress Foundation and a former member of the American Bar Association''s board of governors, agreed.
"I do not think [Schumer''s] is the correct interpretation," he said. "There are two different acts in the process. One is the act of nominating, the other is the act of appointing...the advice and consent goes to the appointment, not the nomination."
Text of Constitution conflicts with Schumer''s "advice and consent'' claim
Harrison referred to the text of Article II, Section 2, Clause 2 of the U.S. Constitution, which says: \ldblquote...he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint," government officials, including "Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."
"The phrase "advice and consent'' is a bit archaic," he added. "Nowadays, we would say "consent,'' or "approve,'' or "ratify.'' We wouldn''t use "advice'' in the sense that it is used there."
To support his point, Harrison noted the placement of the nouns and verbs in the portion of Article II, Section 2, Clause 2, that refers to treaties compared to the "advice and consent" clause.
"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties..." Harrison recalled versus, \ldblquote...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint..."
Harrison noted that the only verb in the treaty clause, "make," is obviously attached to both nouns, "He," the president, and "Senate." In the reference to nominations, however, only the pronoun "he," referring to the president, comes before the verb "nominate." The action taken together with the Senate, identified by the verb "appoint," comes after the nomination.
The "clear and unmistakable intent" of the founding fathers, Harrison added, was that the Senate''s role would be to give or withhold their "advice and consent," after the president had nominated someone, by voting for or against their confirmation.
"The nomination is not with advice and consent," Sekulow explained, adding that the "advice and consent" clause merely gives the Senate permission to hold committee hearings on those the president has already nominated but, more importantly, requires that the full Senate vote on each of the president''s nominees.
"They are not co-equal when it comes to the nomination process. The president nominates, the Senate advises and consents through voting "yes'' or "no,\rquote" he insisted. "That''s how they exercise their right to advice and consent, through an up-or-down vote, something they''re not allowing here."
Democrats "behaving extra-constitutionally...perhaps even unconstitutionally''
Roger Pilon, vice president for legal affairs at the Cato Institute, said there is little motivation for the president to seek Senate approval before naming a nominee and no legal requirement that he do so.
"The more important of those two words, "advice'' and "consent,'' clearly is "consent'' because the way the Senate exercises its power, if it objects to a nomination, is simply by failing to consent," he said.
Regarding the Democrats'' filibusters of U.S. Circuit Court of Appeals nominees Miguel Estrada to the D.C. Circuit, Priscilla Owen to the 5th Circuit and William H. "Bill" Pryor to the 11th Circuit "raise interesting questions about the separation of powers.
"My sense is that they are behaving extra-constitutionally and, perhaps, even unconstitutionally. The Constitution clearly contemplates an up-or-down majority vote with respect to appointments of this kind," Pilon said.
"What we''ve got here is an attempt, through the filibuster, to impose a supermajority requirement when, plainly, the Constitution contemplates a mere majority requirement," he added.
Both Pilon and Harrison agreed that a court would be unlikely to rule on such a case, if it were brought before it, citing the "political question doctrine" under which courts have traditionally avoided attempts to make them take sides in "purely political" disputes concerning the operations of the legislative or executive branches of government.