Nathan-

Like the founders, I am no fan of majority rule, so I really don't have a problem with the Senate's historical practice of allowing the members of its body to filibuster various and sundry matters. But here the question is not whether a minority of senators should be able to block consideration of a presidential judicial nominee via a filibuster, but rather whether such action is unconstitutional under the Advise and Consent Clause of the federal Constitution. I have not completely made up my mind on the answer to that question, but I think all would agree that is indeed the relevant line of inquiry.

Freddie:

Two Points. (1) The Other Party has established that they believe it to be constitutional to prevent a vote on a presidential nominee by not ever holding a committee hearing on the nomination, or by not voting in committee even though a hearing has been held. I cannot distinguish the two cases, can you?

(2) Even if one were to accept the argument about the A&C clause, which I do not, one has to ask how such a question could be resolved. Does a Senator sue in federal court? What does he/she ask for? Can a federal court rewrite the rules of the Senate to get a desired outcome? That runs right into the Constitutional provision that the legislative bodies comprising the Congress write their own rules of procedure. That too seems to be a relevant line of inquiry.

John-

Actually, I think we are in agreement. As someone who is a member of "the other party," I condemned the Republicans for failing to hold hearings or schedule votes on Clinton's nominees, and have maintained that stance with regard to the dems' obstructionist tactics toward Bush's nominees as well.

The larger and more important question is whether the tactics of either party, past or present, are/were unconstitutional. But whatever the answer is (and at this point I'm just not sure), I agree with you that the issue must be resolved by the Senate and is not subject to judicial review (i.e., is a "political question").

It's fun to be a Republican condemning both his party's behavior on Clinton nominees, and the other party's on Bush nominees. You're consistent, but the result is, anyway, that the courts get packed with ideologues from your side. I think that's what it means to say, have your cake, and eat it too.

The Republican blue-slip policy allowed a single Senator to block a Clinton nominee. I think the answer is to remove the entire Senate from the process, and let TV pundits decide. It would be just about as fair to the minority.

I think that you're missing the point. I am not saying that the Republicans are right, but simply that this is a serious constitutional issue that the Senators ought to thoughtfully consider in a nonpartisan manner. Now, if you still wish to characterize my position as shilling for the Republicans be my guest.

I don't understand the "constitutionality" issue of the Senate filibuster. There are certain places in the Constitution where the Constitution specifically states how many votes are needed in the Senate in specific instances (for example, in Impeachment, "two thirds of the members present", but on other matters it is silent as to requirements, providing only (Art 1 Section 5) that "Each house may determine the rules of its procedings". To me, that implies a certain latitutde on the part of the Constitutition to allow the Senate to make its own rules regarding what's required to get to a floor vote.
Funny, I never heard this talk of Constitutionality throughout the 90s when Clinton's nominees were repeatedly abused.

The basic reality is the GOP could have abolished the filibuster by majority vote the first day of the session when they adopted rules for the coming session. They didn't. So they have to live with them (since the rules say they can't be changed except by a supermajority) until the next session.

And I guarantee that if a Democratic President is elected, the GOP Senators will not abolish it.

Andy-

The constitutional question is whether the Senate can said to have met its duty under the "Advise and Consent" Clause of the Constitution when: (1) the nominee is never given a hearing (e.g., because a senator has blue slipped him); (2) the SJC votes the nominee down without sending the nomination to the full Senate for a floor vote; or (3) the full Senate fails to give the nominee a straight up or down vote. In short, does the Advise and Consent Clause require that the full Senate body be given an opportunity to vote on each of the president's judicial nominees?

Now you are certainly free to conclude that this question should be answered in the negative, but that doesn't mean that the foregoing actions don't implicate constitutional concerns.

But Feddie-- if you want to be literalist in that way, you are missing the words "advise" as opposed to "consent." A vote is consent, but since Bush failed to seek "advice" before nominating his various candidates, the Senate is therefore quite justified in rejecting all such candidates skipping the "advise" step.

There are two words in that "advise and consent" phrase. Bush seems to have missed one of them.

Nathan

Nathan-

Actually, the relevant text provides that "He [the president] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States . . . ." Thus, the "Advice and Consent" condition/restriction does not apply in any way to a president's power to nominate judges, only to the appointment power that he shares with the Senate.

This is not to say that a president should not confer with members of the opposing party regarding his judicial selections. Perhaps he should. But there is clearly no constitutional duty to do so (as you imply).

Look, the only point that I have been trying to make--which at the time of my original post I thought was fairly noncontroversial--is that there are serious constitutional issues at stake, and that they ought to be addressed by both sides in a serious manner. Isn't that something we should all be able to agree on?

The real constitutional issue is the separation of powers. The judiciary is not supposed to be the creature of the President, so a healthy tug-of-war over candidates is generally to the good.

I've said that I think the filibuster is undemocratic, but then so is the Senate itself. The Democrats in the Senate actually represent a greater number of voters than the GOP, so why shouldn't they be able to vote down any nominee.

In a sense, the filibuster is an undemocratic correction for the fact that a minority of the population can actually pass legislation or a nominee. A 60-vote total means that it really does require some real majority of the population to consent to the President's pick.

But what's "unconstitutional" is a largely uninteresting question in this context. On this particular point, the courts would probably never intervene, so any discussion of "constitutionality" is merely rhetoric. It's fun to throw around, but it's "non-serious" in the sense that it will have no ultimate deciding role in resolving the issue.

I agree that SOP concerns are present, that "[t]he judiciary is not . . . the creature of the President," and that "a healthy tug-of-war over candidates is generally to the good."

I do not agree, however, with your statement that "what's 'unconstitutional' is a largely uninteresting question in this context . . . . [and] 'non-serious' in the sense that it will have no ultimate deciding role in resolving the issue."

Although I agree that the constitutional issue of whether a presidential nominee is entitled to a full Senate vote is nonjusiticiable (i.e., a political question), both the executive branch and Senate have constitutional obligations that should be taken seriously. And that's all I am suggesting should take place. That's not to say you're incorrect in asserting that the issue will "have no ultimate deciding role in resolving the issue." You're probably right. But it should.

Finally, as an aside, I don't have any problems with the undemocratic features of our Republic (or the Senate for that matter). Like the founders, I am no fan of a "purer" form of democracy. Most of "we the people" have neither the desire nor the ability to make serious decisions about serious matters. But I suspect we disagree on this point as well.

Have a nice weekend, Nathan.

As long as you want this to be the standard for all future judicial nominees, then feel free to agree with this. Lets not insult each other by pretending that there is anything constitutional about this. The senate has never had the right to choose nominees. If they want to advise, they them blather on at hearings like they have been doing for a century.

Sen Hatch suggested Ginsberg to Clinton to avoid the debacle on Babbitt who might not have even carried the democrat votes. Hatch actually suggestion somebody who he disagrees with on every possible legal issue. Do you honestly think that Schumer or Leahy is going to suggest to Bush somebody who they completely disagree with? Duh. There is going to be a filibuster on anybody who is clearly pro-life (which is illegal in the democrat party, btw).

This is politics. Nothing more altruistic, philosophical or 'fair' than that. But its an escalating arms race. And someday Anthony Kennedy is going to die and you may regret it. Think of this one fact. No democrat president has nominated a conservative to the bench is the last generation. But two republican presidents have nominated 3 liberals. Seems like things are actually going fairly well. But Schumer and Leahy might just screw that one up forever.