Notes on the Nuclear Option -- Part VIII

by Kagro X

The Constitution, as we were reminded by the debate over the Defense of Marriage Act and its fallout, is properly considered a document that creates rights rather than destroying them.

So I guess it's in this spirit that proponents of the "nuclear option" seek to create a new body of rights, this time enforceable (presumably) against the Legislative branch. I can't think right away of any other constitutional rights that individuals are entitled to sue the Senate to enforce, but I'm not going to spend an awful lot of time on it. This one's bad enough.

One of the key complaints nuclear option proponents have is that filibusters against judicial nominations are unconstitutional because they interfere with the appointment power of the president. It's never really fleshed out how opposition to an appointment that obviously has been made (how else could it be filibustered?) interferes with the president's ability to make it. Presumably this involves flying around the world backward at hyper-speed to reverse time.

Clearly, what proponents mean is that filibusters interfere with what they imagine to be the Senate's constitutional duty to provide the president their advice and consent on the nominations, although that's not always what they actually say. The objection that filibusters impede the president's appointment powers is easily answered, even if you're willing to ignore the fact that they plainly don't impact those powers at all: the Senate may, I think we all agree, withhold its advice and consent. That’s a fundamental and constitutionally valid check against the executive power. So the withholding consent itself can’t really be considered unconstitutional. Rather, it’s how the Senate may express its withholding that generates controversy.

Nuclear option supporters think there's only one way: a rejection of the nomination on an up-or-down vote. That's clearly an expression of a lack of consent. (Where the "advice" portion comes in, I'm not sure, and nobody's trying very hard to find out. Perhaps, though, in such a case one might say the president would have been better "advised" to choose another nominee.) Opponents, however, think the founders may have been a bit more imaginative than that. Was it beyond the contemplation of the designers of the "pocket veto" that the Senate might express its lack of consent by taking no action at all? It certainly wasn't beyond the imagination of Senate Republicans who expressed their lack of consent in precisely this manner on the nomination of some 60+ of President Clinton's nominees.

The objection that filibusters prevent the Senate from providing its advice and consent is slightly more troublesome, but not for the same reasons. Of course, part of the argument is the same: opponents of the nuclear option say that voting isn’t the only valid means by which the Senate can express its advice and (lack of) consent, and proponents say only a vote can settle the question. But what’s more troublesome still is that nuclear option proponents are expressing things in terms of “rights” – always something you should want to consider carefully when the Constitution is being invoked, but which Republicans instead will seek to dispense with on a party line vote with no debate permitted.

Under the theory that prefers to call the nuclear option the “constitutional option,” does a judicial nominee have a “right” to an up-or-down floor vote on his or her nomination? If so, this is surely either a brand new right, or one that Senate Republicans deprived so many Clinton nominees of. But laying that aside for a moment (as Bill Frist will thank you to do), there’s a serious question here. Whose “right” is this? Does it vest in the nominee? If so, when? At the time of his or her nomination? When the Majority Leader makes a motion to bring the nomination to the floor? At adjournment sine die when the nomination expires? Or is it the president’s? We’ve already agreed that the filibuster doesn’t actually impede the president’s right to make an appointment. Does it impede a “right” to a vote? And if so, when might that right vest? Or does the right somehow vest in the Senate itself, or in some portion of it? Can the Senate sue itself to enforce its “right” to express its advice and consent? Is that a frivolous lawsuit?

A right implies that there’s a remedy, too. What’s the remedy if the right vests in a nominee? Can a private citizen (or someone actively in the service of the government, if that’s the case) use the Article III courts to petition the Article I Senate to enforce Article II, or is this just a separation of powers nightmare? Would a court be willing to force the Senate to vote? And the timing is important, too. Does a nominee have standing to sue just because he or she hasn’t gotten a vote yet, if they still might? Could a nominee enforce any kind of remedy if he or she sues once his or her nomination has expired for lack of a vote? Could such a nominee sue the president and force his or her renomination? Having the right vest in the executive is a separation of powers nightmare, too, and the complications that the question of timing raises apply as well.

It’s probably also worth wondering whether vesting these rights in anyone but the Senate or some subset of it would itself be violative of Art. I, sec. 5 – that magical bit that gives each House of Congress the right to determine its own rules of procedure, the same bit from which nuclear option proponents extract… the right to exercise the nuclear option. Can the president or a citizen nominated by the president sue in court to force the Senate to proceed as he or she demands?

So, could that right to a vote vest in the Senate itself? Are there fewer problems imagining that the Senate could sue the president to force a renomination of a judge because it failed to act last time? Is it even possible to imagine that the Senate’s constitutional rights are created by Article II?

These are big questions, and though I’ve put a lot of thought into asking them, it’s hard to muster the energy to put as much into answering them, especially when it’s so clear that nuclear Republicans aren’t interested.

Comments

[TealVeal]

Here's the scenario I fear: The Republican leadership want to get rid of the filibuster for judges but enough Republicans join the correct side and stand firm with the Democrats. Ok so what does the Leadership do? Gavel the Senate into session at 4 am with all their supporters. Cheney makes his ruling as fast as his broken heart can do so. Rule changed?

[Petey]

You might find this of interest:

http://www.ndol.org/ndol_ci.cfm?kaid=131&subid=192&contentid=253258

[Kagro X]

Anything can happen -- for instance, TNH now remembers my personal info.

I'm not entirely sure what sorts of formal rules versus informal understandings govern unanimous consent agreements, or more importantly, agreements to honor another absent Senator's objection to unanimous consent, but if the Senate went into session at 4 a.m. with nobody around but supporters, I don't think they'd have to change the rules. They could just ask unanimous consent to consider the nomination and proceed immediately to a vote. There wouldn't be any need to wake Cheney.

But if they decided to change the rule, I guess they could do that, too. I'd have to dig through the rules and precedents a little bit to answer that one more thoroughly, though.

Once you get agreement from the chair that the rules that normally govern how the Senate may change its rules don't apply, however, I suppose all bets are off.

[TealVeal]

If I were Cheney I'd change the rule at 4am, because once I pulled a stunt like approving judges at 4am I'd expect the other side to have a Senator camped out in the chambers 24/7 thenceforth.

This sort of stuff is all fascinating, I appreciate the effort you put into writing it up.

[JollyBuddah]

Why can't the Democrats object to unanimous consent on the nuclear option?

I don't understand why they didn't object to unanimous consent on bankruptcy and drilling in the Arctic National Wildlife refuge. What am I missing here? Are they worried that Sam Donaldson and David Broder will give them a stern lecture?

[Kagro X]

They can object, they just have to be there to do it. TealVeal is talking about a middle-of-the-night, no notice session.

As for the other things, unanimous consent is not the only way to bring a bill to the floor, it's just the preferred way. A majority vote can bring anything up for consideration.