By DANIEL ZIMMERMAN

5/18/05

Many Republicans are trying to claim that the Constitution is “clear” that a simple majority should be all that is needed to fulfill its “advice and consent” power on judicial nominees. Some Republicans are hypocrites on this issue. Senator Crapo believes that causing Clinton nominees to die in committee was different, even though it allowed for a much smaller percentage of the Senate to stop an “up or down” vote on a judicial nominee than a filibuster currently does. Regardless of what happened in the past, all one needs to do is look carefully at the wording of the Constitution to show that there is no basis for these claims.

There are 2 applicable sections of the Constitution. Article II, Section II, Clause 2 states: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States”. Article I, Section V, Clause 2 states: “Each House may determine the Rules of its Proceedings”.

The argument used by Republicans is because the Constitution mentions “two thirds” as the percentage needed for treaties, all other areas of advising and consenting should be done with a simple majority. This is an illogical conclusion because stating that one area of advising and consenting requires a certain percentage says nothing about the other areas where the Senate gives advice and consent. In fact, the Constitution does not even mention a majority when it comes to any action of either House, other than to require one for a quorum to do business. The words “up or down vote” are not stated in the constitution in conjunction with the Senate roll in confirming judicial nominees or any other roll. Furthermore, Section V of Article I clearly states that each House determines its rules for operation. The Senate has created a rule that allows a minority to filibuster a vote. Sure, “advice and consent” does not mean that a supermajority is required. However, it also does not forbid a supermajority as well.

The Constitution is clear. When it comes to treaties, two thirds of the Senators present must concur. On all other matters of advice and consent, the Senate has the Constitutional authority to proceed as it sees fit. The Senate can always change its rules to stop filibustering on judicial nominees. Of course, this would require a discussion and vote, which would most likely be filibustered. The required vote to break a filibuster on a Senate rules change is two-thirds. If the Republicans use a procedural trick to circumvent the Senate rules on changing the rules, they will be just as guilty of abusing a procedural process as they are claiming the Democrats are. My suggestion is for the Republicans to try and use this as a campaign issue in 2006. If this issue is really that important to the voters, they will vote in enough Republicans so the judicial nominees get an “up or down” vote.