May 10, 2005
The "Plain Language" of Appointing Judges

By Michael Schwartz

There is a peculiar tragedy in the making in the fight over the filibuster and judicial nominations. Senate conservatives, whose watchword when it comes to the judiciary has been that the Constitution should be applied as it was written are acquiescing in the willful disregard of the Constitution’s plain language. And, to add insult to injury, by validating an activist misreading of the Constitution, they’re picking a fight they don’t have to, over a Senatorial device – the filibuster – that has been a historic friend to them and to our democracy.

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. Article II, which vests the “executive Power” in the President, also enumerates a number of those powers. There is a sentence in Paragraph 2, Section 2 of that Article that does two things: first, it empowers the President to make treaties “with the Advice and Consent of the Senate . . . provided two thirds of the Senators present concur”; and second, it empowers the President to nominate “Judges of the supreme Court and all other Officers of the United States [which include lower-court federal judges] ...” and to appoint them “by and with the Advice and Consent of the Senate.” The appointment power is not qualified by a two-thirds proviso, as the treaty power is. Accordingly, under elementary principles of construction, where in the same sentence of the same paragraph of the same Section of the same Article, one clause requires a supermajority to concur, and another does not, the omission in the second sentence must be deliberate. 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.

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.

Instead of pursuing this Constitutionally unassailable course, however, the Republican leadership has threatened the “nuclear option.” But the very premise of this option is that the Democrats are right in their reading of the sentence just parsed. In other words, the “nuclear option” assumes the correctness of the Democrats’ mistaken -- and truly activist -- misreading of Article II, as protecting the Senate’s power to impose a supermajority requirement that the Constitution itself demonstrably chose not to impose.

What’s distinctly missing in the current imbroglio is a willingness on the part of the Senate – and, for that matter, the White House too – to actually live by the “plain language” philosophy Republicans have chastised the courts for abandoning. There is no need in this instance to persuade a court to buy into the “plain language” approach; the Senate leadership and the White House can enforce it themselves. It is hard to believe that, instead of doing so, they are validating the Democrats’ misreading of the Constitution and contemplating a wholly unnecessary weakening of Senate Rule XXII.

This would be a historic and potentially far-reaching mistake. Without defending every instance in which Senators have availed themselves of the Rule’s protection, one really has to wonder why it is the party of restraint and caution that is attempting to come up with ways to limit its reach. Notwithstanding Senate Democrats’ present abuse of the filibuster, its historic function has been to assure that the utmost deliberation and a wide consensus attend the consideration and enactment of controversial legislation.

Senator Frist assures us that the limitation to the Rule he has threatened will not be extended to consideration of legislation; but once he’s pressed the button, neither Senator Frist nor anyone else will be able to predict the pattern of its fallout. However large a place judicial appointments may occupy in the present political landscape, it is not hard to imagine other political issues arising in the future where an impatient majority might make a convincing case that action is urgent, and that antique notions of Senatorial restraint and deliberation should be set aside. By their actions today, the Republicans will have legitimated the practice of a simple majority can cut off debate, and the precedent they are threatening to create will be a powerful argument for doing so.

It is disheartening that, although the Republicans control both the White House and the Senate, they should be refusing to use their power to enable the President to make judicial appointments in a straightforward, clearly constitutional manner. It is even worse that, in doing so, they are gratuitously willing to weaken minority protections against ill-considered legislation, as if the day may never come when they no longer have such power.

Michael Schwartz is a partner in the law firm of Wachtell Lipton.

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