Judges, Senate rules, and Abraham Lincoln
Two days before Christmas, President Bush announced the re-nomination of judges to the federal bench who had been filibustered in the previous Congress. Some of these individuals were first nominated in 2001, and have yet to receive an up-or-down vote in the Senate. News of the nominations has triggered talk of "bloody" battles in Washington in the year to come.
Over at The Corner, Ramesh Ponnuru and Mark Levin have been engaged in a debate over whether the Senate's practice of filibustering judicial nominees is constitutional, with Ponnuru defending the institution's right to set its own rules and Levin arguing that the practice encroaches on a power that belongs not solely to the Senate, but also to the executive branch, and that a supermajority requirement to "advise and consent" is an unconstitutional usurpation of power by the legislature.
The clause in the Constitution that is causing all of this uproar is set forth in Article II, Section 2, paragraph 2, and states, in pertinent part, as follows:
"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
Ponnuru correctly notes that the Constitution is not explicit that there is no supermajority requirement for the confirmation of judicial nominees. However, this clause specifically requires a two-thirds majority to ratify a treaty made by the executive. No other provision in this clause contains a numerical requirement, including the "advice and consent" to judicial nominations. As Levin argues, correctly, I think, if the Framers had intended there to be anything other than a majority requirement for confirmation of presidential appointments, it could easily have included such a provision in this paragraph. Its inclusion for ratification of treaties, and omission when discussing presidential appointments in the same paragraph, weighs against a supermajority requirement for confirmation of those appointees.
Another argument advanced by Levin is the placement of the "advice and consent" clause in the Constitution itself. It is not included in Article I, which establishes the Legislature, and which states in Section 1 that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." It is in Article II, which establishes the executive, and is in a paragraph defining the executive power. It clearly, then, is not solely a legislative power, but an executive power to appoint.
I think Levin's arguments are persuasive. For historical comparison, there is one glaring event in United States history in which the executive clearly acted to do something that the Constitution places under legislative power -- Lincoln's suspension of habeas corpus during the Civil War. In Ex parte Merryman, Chief Justice Taney stated that Lincoln had acted outside the scope of the authority granted him by the Constitution, because "[t]he clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department."
Recently, in Hamdi v. Rumsfeld, the Supreme Court again addressed this historical oddity, noting that "[d]uring the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization."
If it was unconstitutional for Lincoln to frustrate a power granted to Congress by the Constitution, is it any less an encroachment upon executive power for the Senate to add to the plain text of the Constitution a super-majority requirement on advice and consent, when the Constitution (1) places the appointment power in the executive, and (2) does not specify that more than a majority is required to act on the President's judicial nominees? Congress is only required to provide "advice and consent" to the president's nominees. Yes, the appointment power is slightly different than Taney's reference to habeas corpus, in that it does contain a reference to Senate action. But given the opportunity the Framers had within that paragraph to specify a super-majority for confirmation, and its blatant omission, for Congress to add such a provision on its own is an improper action, usurping the executive prerogative.
Over at The Corner, Ramesh Ponnuru and Mark Levin have been engaged in a debate over whether the Senate's practice of filibustering judicial nominees is constitutional, with Ponnuru defending the institution's right to set its own rules and Levin arguing that the practice encroaches on a power that belongs not solely to the Senate, but also to the executive branch, and that a supermajority requirement to "advise and consent" is an unconstitutional usurpation of power by the legislature.
The clause in the Constitution that is causing all of this uproar is set forth in Article II, Section 2, paragraph 2, and states, in pertinent part, as follows:
"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
Ponnuru correctly notes that the Constitution is not explicit that there is no supermajority requirement for the confirmation of judicial nominees. However, this clause specifically requires a two-thirds majority to ratify a treaty made by the executive. No other provision in this clause contains a numerical requirement, including the "advice and consent" to judicial nominations. As Levin argues, correctly, I think, if the Framers had intended there to be anything other than a majority requirement for confirmation of presidential appointments, it could easily have included such a provision in this paragraph. Its inclusion for ratification of treaties, and omission when discussing presidential appointments in the same paragraph, weighs against a supermajority requirement for confirmation of those appointees.
Another argument advanced by Levin is the placement of the "advice and consent" clause in the Constitution itself. It is not included in Article I, which establishes the Legislature, and which states in Section 1 that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." It is in Article II, which establishes the executive, and is in a paragraph defining the executive power. It clearly, then, is not solely a legislative power, but an executive power to appoint.
I think Levin's arguments are persuasive. For historical comparison, there is one glaring event in United States history in which the executive clearly acted to do something that the Constitution places under legislative power -- Lincoln's suspension of habeas corpus during the Civil War. In Ex parte Merryman, Chief Justice Taney stated that Lincoln had acted outside the scope of the authority granted him by the Constitution, because "[t]he clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department."
Recently, in Hamdi v. Rumsfeld, the Supreme Court again addressed this historical oddity, noting that "[d]uring the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization."
If it was unconstitutional for Lincoln to frustrate a power granted to Congress by the Constitution, is it any less an encroachment upon executive power for the Senate to add to the plain text of the Constitution a super-majority requirement on advice and consent, when the Constitution (1) places the appointment power in the executive, and (2) does not specify that more than a majority is required to act on the President's judicial nominees? Congress is only required to provide "advice and consent" to the president's nominees. Yes, the appointment power is slightly different than Taney's reference to habeas corpus, in that it does contain a reference to Senate action. But given the opportunity the Framers had within that paragraph to specify a super-majority for confirmation, and its blatant omission, for Congress to add such a provision on its own is an improper action, usurping the executive prerogative.
posted by Hal | 1:13 PM
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