by Matt Barr

Advice and consent esoterica

At Q & O, Dale Franks notes a "novel approach" to the filibuster problem from Michael Schwartz that involves the President installing his nominees to the Circuit Courts absent a vote that specifically denies the Senate's consent. Franks says:

[I]t 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.

It's possible the Supreme Court would decline to review the case at all, which is probably prudent. Witness its refusal to decide whether William Pryor's recess appointment was valid. That doesn't mean, of course, that the larger point that this would be a political mistake by the President is less valid.

Schwartz and Franks give short shrift, I think, to the part of Article I (Section 5) which empowers the Congress to make its own rules on how it expresses its will and passes its laws. In that sense, it would be a legal mistake, too, whether or not the Supreme Court decided to referee a spat between two coequal branches.

I wonder if a clever constitutional scholar could make something of that part of the Seventeenth Amendment, which modifies Article I, Section 2, and which provides:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six Years; and each Senator shall have one Vote.

Emphasis added. On the matter of consent to the nomination of, say, Judge Owen, has every Senator had one vote? "Each House may determine the Rules of its Proceedings," but not to the extent that the Senate, say, assigns one Senator three votes and another half a vote. Each Senator is to have equal say in matters before the Senate, and more than that, each is to have one vote -- not less. Not no vote at all.

The Senate may by rule determine what matters are properly before it, but the nomination by the President of a lower federal court judge is a matter for the Senate per a specific clause of the constitution that the Senate can't modify. (Only the Supreme Court can add and delete provisions to the constitution on a whim.) If I'm a Republican Senator, might I argue that I am entitled to my one vote, granted me by the constitution, on a matter the Senate must consider?

I know, he or she would have to be an awfully clever constitutional scholar.

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