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May 11, 2005


Holy cow! "Interpreting" a failed 51+ cloture vote as consent to the nomination also denies a Senator the right to vote for cloture on the principle that he objects to filibusters, as Senator Pell used to do.

The Constitution is not a statute. The Framers deliberately left any number of blanks to be filled in later, the internal operating procedures of the Senate being a particularly obvious one. All these arguments that go "if the Constitution doesn't specifically cover a procedure, it can't be permitted" are complete non-starters.

Your post has the right focus though. This guy starts off with what sounds like a colorable argument, but then flies off the deep end by suggesting that the Senate doesn't even need to vote to express its consent. What a nut.

He just... does.

Like so many arguments rightwingers make when they can't figure out a logical approach.

Your bulldog stamina in keeping a grip on this stuff is a wonder to behold, Kagro, and to read.

Hear, hear! What MB says. So how seriously is this guy taken out there in the real world?

How seriously? I don't know. Armando says he knows him. I'll let him tell you what he thinks.

His bio from his firm's web page says he's got all the right credentials to be taken seriously:

Harvard Law School (LL.B., 1967), magna cum laude
Harvard University (A.B., 1963), magna cum laude
Ecole Normale Superieure, Paris, France
Phi Beta Kappa

Case Editor, Harvard Law Review, 1966-1967.
Associate Professor, New York University School of Law, 1969-1973.

The Association of the Bar of the City of New York; American Law Institute.

Unless, of course, it turns out that Harvard merely "consented" to his credentialing.

Gawddammed lawyers.

Wachtell is not a Constitutional law shop, all they do is M&A - well not all but mostly.

But the guy is being a partisan here not a lawyer.

I commented to Kagro the following:

"You are way too kind on Schwartz's plain meaning interpretation.
Indeed, the proper application leads to the opposite conclusion. Since the writers of the Constitution DID restrict the Senate's operation when it chose, on ratification of treaties - and did so in express terms, their failure to do so on judicial nominations is read plainly to place NO restrictions on the Senate's actions in that regard.

That's plain meaning 101.

This is especially so when you combine the express powers given to the Senate to control the conduct of its affairs.

Thus, the Senate would be fully free to render its advice and consent in any manner it saw fit. It can AMEND its rules to adopt the Schwartz plan - but that's the rub always - it takes 2/3 to amend. They are back to square 1.

Since you are the go to guy on this, I hope you clarify on these points."


Bernie Nussbaum is his law partner.

Miguel Estrada used to work at this firm too.

Let's be clear, the guy has the intellectual power, no question - but he is just making a partisan argument - it's not a new argument, and it is just as stupid coming out of his mouth, but he is obviously a very very bright guy.

And kagro, you slide over his voila moment -

"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."

Nonsense. It reflects Schwartz making shit up. The invisible plain meaning of silence.

Voting bodies have rules, and for very good reason.

The pre-eminent reason is this: it is desirable that a voting body, when it has decided something, be in agreement that it has decided that thing.

If a workable set of rules is adhered to, both the prevailing side and the nonprevailing side (as well as any absent or abstaining members) will find themselves in no conflict as to what question has come before the body, and whether that question has been disposed of, and eventually how it has been disposed.

And then they may agreeably proceed to other business.

The alternative is a rapid loss of institutional legitimacy, and a persistent risk of a Great Unraveling wherein no question is settled, but any debate is followed by divergent claimants going abroad peddling divergent claims to whatever audience will have them.

For all his credentials (and by whatever rules credential-granting bodies decisively granted credential-granting institutions the power to decisively grant these credentials), the Dark Side of the Schwarz seems unacquainted with this First Principle.

Wachtell is not a Constitutional law shop, all they do is M&A - well not all but mostly.

Bernie Nussbaum is his law partner.

Miguel Estrada used to work at this firm too.

Just did one of their M&A gigs with Greenberg Traurig, too.

Probably unfair to connect him to Abramoff, but what the hell. I was too fair, before. Now I'm fair and balanced.

Ditto what many people have said above about the problems in the "plain language" argument.

By the way, the same "plain language" argument suggests that the filibuster, in general, (or any supermajority vote pertaining to legislation) is unconstitutional:

Article I, Section 7 states: "Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States[.] . . . [If after he vetoes it and returns it to the House in which it originated,] two thirds of that House shall agree to pass the Bill, it shall be sent ... to the other House ... and if approved by two thirds of that House, it shall become a Law."

By Schwarz's logic, the express use of a two-thirds requirement in one clause but not the other means that each House is prohibited from using any supermajority internal procedures. Now, I'm sure one could argue that the *history and intent* of the the Constitution allows the Senate more leeway to construct internal rules for Article I legislation, but not for Article II judicial confirmation. But that wouldn't be a plain language argument ...

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