Tuesday, May 10, 2005

The BEST solution to the filibuster

Michael Schwartz is a partner at Wachtel Lipton, probably the premier law firm in the country. He has a novel, and constitutionally supportable, solution to the Democrats' unconstitutional filibuster that would not require amending the Senate filibuster rules:

It is readily demonstrable – on “plain language” interpretive grounds – that the Constitution does not require anything more than a simple majority of the Senate to confirm the President’s nominee to the bench, and does not permit the Senate to impose any larger numeric requirement. Article II, which vests the “executive Power” in the President, also enumerates a number of those powers. There is a sentence in Paragraph 2, Section 2 of that Article that does two things: first, it empowers the President to make treaties “with the Advice and Consent of the Senate . . . provided two thirds of the Senators present concur”; and second, it empowers the President to nominate “Judges of the supreme Court and all other Officers of the United States [which include lower-court federal judges] ...” and to appoint them “by and with the Advice and Consent of the Senate.” The appointment power is not qualified by a two-thirds proviso, as the treaty power is.

Accordingly, under elementary principles of construction, where in the same sentence of the same paragraph of the same Section of the same Article, one clause requires a supermajority to concur, and another does not, the omission in the second sentence must be deliberate. In other words, the omission in the second sentence reflects the Framers’ determination that no more than a simple majority of Senators needs to “Consent” before the President is authorized to make the appointment.

Reading the Constitution in this fashion – which is not an artful, or creative, or “activist” interpretation, but Plain-Language Interpretation 101 – all that is constitutionally required is that the leadership hold a floor vote, any floor vote, that permits the Senate to express its view on the President’s nominee, and that a majority “consent.” No particular mechanism is constitutionally required; let it be a failed cloture vote, for all that it matters. The President should then make the appointment, and it’s on to buying robes and picking clerks.

Instead of pursuing this Constitutionally unassailable course, however, the Republican leadership has threatened the “nuclear option.” But the very premise of this option is that the Democrats are right in their reading of the sentence just parsed. In other words, the “nuclear option” assumes the correctness of the Democrats’ mistaken -- and truly activist -- misreading of Article II, as protecting the Senate’s power to impose a supermajority requirement that the Constitution itself demonstrably chose not to impose.

What’s distinctly missing in the current imbroglio is a willingness on the part of the Senate – and, for that matter, the White House too – to actually live by the “plain language” philosophy Republicans have chastised the courts for abandoning. There is no need in this instance to persuade a court to buy into the “plain language” approach; the Senate leadership and the White House can enforce it themselves. It is hard to believe that, instead of doing so, they are validating the Democrats’ misreading of the Constitution and contemplating a wholly unnecessary weakening of Senate Rule XXII.

Under this theory, all that has to be done is something like "be it resolved that the consideration of the question of the appointment of Priscilla Owen to the Fifth Circuit Court of Appeals needs no further debate because the Senate consents to said appointment" and bang -- she's on the Fifth Circuit. Nice.

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