Notes on the Nuclear Option -- Part IX

by Kagro X

It is the assumption of most nuclear option proponents that the filibuster, as practiced by Democrats against Republican judicial nominees, is unconstitutional. It's an argument that ignores the past use by these same proponents of other counter-majoritarian procedural maneuvers that have had the same result -- i.e., the blocking of an up-or-down vote that they claim is constitutionally mandated.

But while there are certainly tit-for-tat issues that need addressing, how sound is their constitutional argument?

C. Boyden Gray, formerly White House counsel to George H.W. Bush, distributed his views in a memo to journalists and editors back on February 28th. I believe that he, like most nuclear proponents, proceeds from a flawed assumption: that the "advice and consent" clause of Art. II, sec. 2 mandates not only a floor vote on judicial nominations, but sets a ceiling on the number of votes the Senate may require for confirmation. The neo-con argument is perhaps stronger on point two than on point one, but I deny the validity of both.

Gray gets off track almost immediately: "By definition a filibuster is a refusal to allow a final vote." That's at the same time too narrow and too broad a definition. It's too narrow on a technical point: Senators may filibuster any debatable matter, including a motion to take up consideration of a bill or nomination, and not just a final vote. That might seem like splitting hairs, but it's procedurally important as I'll demonstrate later on. Gray's definition is also too broad: many Senate procedures may be used to deny a final vote, including the old "blue slips" that Senator Hatch eliminated from the Senatorial toolkit once his side was through using them, or the refusal of the Judiciary Committee to report nominations out for floor consideration, another tactic used extensively by Hatch when it was President Clinton doing the nominating. Those tactics certainly had the same effect: to deny a final vote. By Gray's definition, they were filibusters. They just had different names that served -- and nucleo-cons hope still serve -- to keep them separate in the public mind. The truth about them, of course, is that though they don't carry the baggage of the filibuster name, they can and did have the same effect.

But I'll let Gray have that one back, and deal first with the assertion that the Constitution mandates an up-or-down vote on nominations. There can be no doubting that Art. II, sec. 2 requires the advice and consent of the Senate -- it's right there in black and white. Of course, the question is, what is advice and consent? And what isn't it? I don't know of anyone making the argument that the Senate's consent may be expressed in more than one way, that is, by a vote of the body. The assumption has always been that a majority vote in favor of a nomination would secure the appointment, representing the "consent" of the Senate. I suppose that some could argue that recess appointments are "consented to" by the agreement of the Senate to recess even though they know a nomination they have refused to act on is pending, but that's a stretch and perhaps an argument for another day.

So if we say for the sake of argument that there is only one way for the Senate to express its consent, the next question is: how might the Senate express a lack of consent? There is no guidance in the Constitution. All we can say for sure is that whatever one thing consent is, not getting that one thing has to be considered a leading indication of non-consent. There may be a thousand reasons for the failure of the Senate to express consent, and some of them may disguise a true consensus for confirmation, but even the most generous reading of Senatorial tea leaves cannot constitutionally substitute for the one real and recognized manifestation of consent -- a vote in the affirmative.

Gray proceeds immediately to another error:

I believe use of the Senate Cloture rule to permanently block nominations conflicts with the Constitution's Advice & Consent clause which contemplates a majority vote as the standard for judicial confirmation. Democrats have attempted to transform a vote on cloture, requiring 60 votes, into the equivalent of an up or down vote. Yet the confirmation standard remains majority vote.

I will have to concede that tradition dictates that the confirmation standard remains a majority vote, although there's only indirect textual evidence for this, that is, the lack of any express requirement for a higher standard, given that there are other instances in which the Constitution explicitly requires a supermajority, as it does, for example, immediately prior to the "advice and consent" clause with regard to the ratification of treaties. But even with that concession, the claim that the need for a supermajority on cloture changes the standard for confirmation of the nomination itself simply ignores Senate procedure -- and the Senate's Art. I, sec. 5 prerogative to dictate that procedure. The President's nomination power is not impeded by the filibuster. Senate procedure is impeded by the filibuster. The nominations are made today in precisely the same manner, mechanically speaking, as they would be if filibusters were prohibited. The President simply makes them. What the filibuster impedes is the Senate's ability to provide its consent. The President remains unilaterally empowered to make nominations, as the plain reading of Art. II, sec. 2 would have it. But that same section says that the appointment power -- the power to actually put that judge on the bench -- belongs jointly to the President and the Senate: he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint....

It's a fine procedural point as I mentioned earlier, but an important one. The filibuster does not change and cannot change the presumption that a bare majority is necessary to finally manifest consent and thereby overcome the last barrier to the appointment. It can only impose at the Senate's choosing a barrier to consideration of the question of whether or not to manifest consent.

But isn't all this putting form above substance? Isn't blocking consideration of the manifestation of consent tantamount to blocking consent? That's certainly one view of it. Of course, the proponents of this view are usually, as Gray is, comfortable denying that the other barriers to consideration of the manifestation of consent -- blue slips and the like -- are filibusters, even though they define filibusters as the refusal to allow a final vote. That's not a particularly sound basis upon which to have an honest discussion about this. (As though that's what they were after.)

Still, you have to admit that blocking consideration of a vote is at least very annoying. No argument there. The relevant question is, is it constitutional? Gray and other nucleo-cons say no. I say, "why not?"

The trigger that nucleo-cons claim gives the Senate the right to eliminate the filibuster by majority vote (rather than the 2/3 vote that Senate rules require for a rules change) is the Art. I, sec. 5 directive that "each House may determine the Rules of its Proceedings." They take this to mean that no current Senate may be bound by the rules of a previous Senate, and that a majority may vote at any time to undo them. As I explained in Part III of this series, the historical understanding of this power, when it is recognized at all, is that the Senate may only change its rules by majority vote at the beginning of a new Congress. That understanding is governed by another historical understanding: that the Senate is a continuing body (see Part V), with 2/3 of its membership always in office, and that the window of opportunity (if it exists) exists only during that theoretical limbo at the beginning of a new Congress before the Senate by proceeding without consideration of any rules changes is deemed to acquiesce to the Standing Rules. Frist seeks to undo the formalities of having to wait for a new Congress by claiming that his unilateral refusal to acquiesce to the continuation of the cloture rules will give him standing to change that rule as if it were the beginning of a new Congress (see Part IV).

Naturally, there's plenty more to this, but I'll stop here for the moment. How's that for an ending?

Comments

[TheGryphon]

WOW! Thems a lotta words! I don't think rethuglicans understood all that. You didn't spell nookleee-ar even once or say anything about Saint Terry. Just more Librul E-Leetism!

[muledriver]

In a word, abrupt.

If one wants to talk about values, the one value in shortest supply in this country at this time is honesty. Hypocrisy is a form of dishonesty because it is the act of asserting a position as though you believe it when that position is in conflict with other positions you have taken. Which is a lie?

This ties in, I think, because Boy Gray's argument directly contradicts the Republican's position that they want a strict construction of the Constitution. The Constitution nowhere says that an up or down vote is required. For the appointment to stick, consent is required. The absence of consent is the absence of consent.

[Kagro X]

It was abrupt, wasn't it? There's so much wrong with this little five page Gray memo that the standard excuse of not knowing where to start didn't cover things. I also didn't know where to end.

I haven't even gotten to all the parts of the analysis I disagree with. Plus there are more substantive problems with the memo that I haven't even begun with yet. But a Part X dealing with the rest of Gray's arguments is in the works. If things go well, Part XI may deal with exactly how far from fact Gray has strayed.

[The Heretik]

Very impressive. Will most likely cite some in Armageddon on the Potomac

[Kir]

.

[Diesel]

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