Wednesday, November 15, 2006

Advice and Consent of the... SenatOR?

I don't know if it's just bad writing from a non-legally trained New York Observer journalist, but "Exultant Chuck [Schumer] Says He'll Veto the Next Alito" is either a grossly inaccurate headline, or reflects a poor grasp of the Constitution by the senior Senator from New York.

The bad writing/unconstitutional usurpation continues:
"Judges are the most important,"” said Mr. Schumer, who orchestrated the implausible Democratic takeover of the Senate last week. "One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won'’t happen."

From now on, all the President'’s judicial appointments will need to meet the requirements of Mr. Schumer, the Park Slope power broker who has happily accepted the mantle of chief architect for the Democrats'’ effort to build a majority for the 2008 elections and beyond. (emphasis added).
The Constitution vests no veto power in an individual Senator. (It doesn't even vest it in the Senate as a whole.) It is the Senate as a body, not a single Senator (no matter how powerful) who gives only their "advice and consent." And it is the President, not the Senate, who was elected in part because the people preferred his judgment on judicial nominations. Judicial nominations weren't even really an issue (to the detriment of the GOP, in my opinion) in this election. Just as Republicans voted unanimously for Ruth Bader Ginsberg, a qualified jurist properly nominated by the President who was known to have a judicial philosophy conservatives didn't agree with, the Senate should be mindful of their secondary role in this important process. To do more is to usurp Executive authority the Congress is denied by the Constitution.

Interestingly, Schumer also announced that he will make sure "New York will soon be 'disproportionately' enjoying the spoils of last week's victory," and used the opportunity to peddle his book about building a permanent Democratic majority.

It's ironic that this was the reaction of a man who directed the Democratic takeover by running very socially conservative Democrats, attacking (rightly) Republican "earmark" abuse, and pointing out (also correctly) that one party rule for too long leads to arrogance and corruption of principles.

When Congress (or either if its chambers) begins adopting executive power, the balance of our system is lost. The founders vested complete executive authority with the President (as opposed to limited and enumerated powers with the Congress) for a reason. If Chuck Schumer wants that kind of power, he should at the very least stand for election as a Presidential candidate so he could exercise it legitimately. I'll remember this next time I hear liberals complain about "shredding the Constitution."


Cato said...


The Senator's views on the role of the Senate in judicial nominations isn't a usurpation of Presidential power--the Senate has the power to prevent Judicial nominees from being confirmed. If you think Schumer's decisions are based on improper grounds, that's between you and him, but it isn't a constitutional issue--the constitution doesn't care what his grounds are. The Senate, as a body, led or influenced by whomever they choose, gets to make the call, and the constitution doesn't indicate a preference for why they make the call they do.

Bad policy? Maybe. Usurpation? Not according to the constitution.

Juvenal said...

Actually, you can make a case that the constitution (structurally) frowns on some of the Senate rules, as applied to judicial confirmation. The Constitution does not mandate a mechanism by which judges should be confirmed (just plain old "advice and consent"). It clearly does not anticipate the necessity of a super-majority for judicial confirmation, because it explicitly spells out those instances where a super majority is required (impeachment, treaty ratification). A Senate rule that would require a super-majority for judicial confirmation could thus be said to run afoul of the constitution. The use of the filibuster during judicial confirmations is a de-facto requirement of a super-majority, and a case could be made that this is directly contrary to the intent of the framers.

Schumer's claim that he would "veto" any judges he disagreed with might also run contrary to the expectations of the framers. His position on the judiciary committee does effectively enable him to exercise a veto over the President's choice, but I find it hard to believe that the framers of the constitution intended any single senator to have as much power in the process as the president. The constitution requires the advice and consent of the Senate, not the approval of every single senator ...

I think a bunch of the Senate rules frustrate not just the aims of the constitution but the purposes of representative and open government

Orrin Johnson said...

Exactly. Even if the Senate consents to its own rules, that doesn't mean those rules don't amount to an unconstitutional usurpation of their specifically designated powers. If a majority of the Senate is prepared to confirm a judicial pick, it's improper for one Senator (or 41) to stand in the way. It doesn't matter what the policy reasons are, or who the party in the majority is.

The Constitution implicity vests the Judiciary with the power to strike down and interpret statutes without specifically outlining canons of construction. Nonetheless, the Constitutional scheme cares very much "why" a judge does what he does. When the "why" is a policy preference, that judge has usurped legislative and executive power.

The same is true of the "advice and consent" power. If read to mean that the Executive must meet one Senator's (or even 100 Senators') policy preferences among otherwise qualified judges, the President's nomination powers and even his ability to choose his cabinet no longer have any meaning.

If Senate leadership can exercise unfettered control over the cabinet and judicial nominations for mere policy reasons, they have effectively taken over the Executive function from the President. The Constitution does not permit such an imbalance of power.