Tuesday, May 10, 2005

The "Plain Language" of Appointing Judges

It always amazes me how the rather plain language of the Constitution can be spun. At this point in time the Senate is in the process of trying to find some sort of compromise on the filibustering of judicial nominees. The dems/leftists cling to the filibuster as their way to obstruct Bush's nominees. Using the filibuster as part of the Senate's Advice and Consent constitutional responsibilities flies in the face of the Constitution. Michael Schwartz explains in his commentary.

"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."

There it is in plain and simple language. The attempts by the dems/leftists to force more then a simple majority, up or down vote, clearly ursups the Senate's Advice and Consent role. The dem/leftists, their accomplises in the media and assorted others, will continue to try and convince Amreicans that their filibustering judicial nominees, is their duty under the Constitution. Nothing could be further from the truth. - Sailor

No comments:

Post a Comment