Notes on the Nuclear Option -- Part XV

Michael Schwartz, a partner in the high-powered law firm of Wachtell, Lipton, offers us an interesting new twist to the tired canard that argues that the filibuster represents an unconstitutional super-majority barrier to judicial confirmation:

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.

He goes on for some time, along the same lines, but eventually comes around to the same conclusion as everyone else who's ventured down this dead end path:

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.

So far, nothing new. And, as always, answerable simply by reminding everyone that the "plain language" of the Constitution also reserves to the Senate the right to determine its own rules of proceeding, which means that the rules governing what it takes to get to a vote -- not what it takes to prevail in that vote -- are up to the Senate and the Senate alone.

But watch what Schwartz does with this:

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.

Whoa. What Schwartz is saying here is that the "consent" of the Senate may be validly gleaned from a procedural vote rather than a vote on the nomination itself. That is, Schwartz argues that even a failed cloture vote, so long as a majority of Senators vote for cloture, should be considered as manifesting "consent."

That's about as radical a departure from Senate practice as I've heard. And I can understand full well why Republicans busy complaining that the Democratic filibuster supposedly departs from 200+ years of Senate practice don't want to have anything to do with it. Well, I would if I beleived that logical consistency meant anything to them.

Could it work? Well, as the Senate's current nuclear environment makes clear, anything with 51 votes can work. But it throws out more than just 200+ years of Senate precedent. This throws out the entire history of parliamentary procedure, and with it the basic premise that those being asked to express the consent of the governed on a particular issue will have the question laid fairly before them. Schwartz's proposition would ask Senators to vote on whether or not debate ought to continue, but construe the results not as a vote on debate, but instead as on approval of the underlying question.

To be sure, Senators would quickly learn that cloture votes must be treated as substantive votes on nominations, and would surely adjust their voting habits accordingly. But there are, as you might imagine, a number of problems with this proposal that even such an adjustment would not remedy.

First, while it is generally accepted as true, as Schwartz points out, that "where in the same sentence of the same paragraph of the same Section of the same Article [Art. II], one clause requires a supermajority to concur, and another does not, the omission in the second sentence must be deliberate," a strict "plain language" reading tells us only this: that the clause without the 2/3 voting requirement rules out only a 2/3 voting requirement, and nothing else.

Now, it's also true that the general assumption is that in the absence of a specific supermajority requirement, a simple majority requirement is inferred. But of course, that's only because we recognize the validity of general parliamentary law, which tells us that a simple majority is the default. Remember, though, that Schwartz has just urged us to throw out the principle of general parliamentary law which establishes that votes are cast on open and immediate questions, and are not merely inferred from the results of tangential procedural issues.

Second, the Rule XXII cloture procedure itself is very specific about the form in which the question shall be put:

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding  Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

In a nutshell, that would appear to mean that under the rules, the question on a cloture motion can be put one way and one way only, and that one way makes no mention of consent to a judicial appointment. That, of course, is going to fly in the face of any "plain language" argument. There's no clearer way to state the question than that provided for under the rules. And there's no "plain language" argument possible for the claim that the question will encompass and manifest consent to a judicial appointment, or anything else under the sun.

It's also worth noting that a successful cloture vote under Rule XXII automatically makes the underlying question, here a judicial nomination, "the unfinished business to the exclusion of all other business until disposed of." So if a successful cloture vote on a judicial nomination debate makes the nomination the unfinished business, how is it that Schwartz can consider the nomination to be finished business? Indeed, how does he justify considering an unsuccessful cloture vote to have finished the business? He just... does. Which makes it difficult to see why his proposal is any less offensive than the nuclear option. Different, yes. Claims to make it possible to eliminate the filibuster for judicial nominations without implicating the legislative filibuster, yes. But just as offensive to the rules? Yes. Indeed, it may even require a rules change, which is... you guessed it, subject to filibuster. Not to mention the 2/3 voting requirement.

Further, consider Rule XXXI:

When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, "Will  the Senate advise and consent to this nomination?"

So when the presiding officer, under Schwartz's proposal, instead asks "Is it the sense of the Senate that the debate shall be brought to a close," will Democratic Senators be entitled to ask, "Is that your final question?" It seems clear from a "plain language" reading of Rule XXXI that the final question on every nomination must come in one form, and one form only. Schwartz's proposal ignores this rule.

In a "clarification" of his proposal, quoted at Power Line, Schwartz adds:

All the Constitution requires is "consent," not necessarily a "floor vote." I suppose 51 Senators could stand up and say "I consent," and that would do it. My example of a failed vote on cloture is another mechanism, perhaps accompanied by a statement of the 51+ yes voters that, if the question were on the merits, they'd vote yes.

Of course, none of this was intended to address the obstacles posed by the Senate's standing rules cited above -- Schwartz was responding to questions raised at Power Line. But they don't appear to clear the hurdles that the rules present. Nor do they appear to constitute an act of "the Senate." Such acts would certainly qualify as statements on the record by 51 individual Senators, but nothing in the Senate rules that I'm aware of would provide for the transmission of those individual statements by the Secretary of the Senate to the President, as would be the case with the results of a recorded vote, which to this point was presumed to be the only method by which a manifestation of consent may be made. If Schwartz is right, of course, anything could manifest consent, whether it's an act of the Senate or not -- in fact, whether it involves a Senator or not -- just so long as it gets 51 expressions of support from Senators.

At bottom, a proposal that suffers from the fatal defects of defying generally accepted notions of what "the Senate" and "voting" mean, and relying on a few cherry-picked bits and pieces of "plain language" doctrine and general parliamentary law for its legitimacy is probably "advice" to which no Senator ought "consent."

 

Comments

[Mark Schmitt]

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.

[Steve]

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.

[Meteor Blades]

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.

[mcjoan]

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

[Kagro X]

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:

Education:
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

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

Associations:
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.

[mcjoan]

Gawddammed lawyers.

[Armando]

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."

[Armando]

BTW -

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.

[Armando]

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.

[RonK, Seattle]

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.

[Kagro X]

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.

[phaedrus]

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 ...