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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