January 6, 2005
Of Advice And ConsentBy Edward L. Daley
Article II, Section 2 of the U.S. Constitution relates that
"He [The President] 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law..."
So what does all that mean exactly? Well, the first part means that, before entering into a treaty agreement with another country, the President must gain the approval of at least two thirds of the U.S. Senators present at the time. That's a fairly straightforward concept, and no one I know has argued that the author of the above Article intended for those words to be taken in some other way.
However, it's the second part of this particular section which seems to cause a few people some confusion, and it is for this reason that I will clarify its meaning. First off, notice that immediately following the words "provided two thirds of the Senators present concur;" there is a semicolon. A semicolon is a punctuation mark that's used to link independent clauses, therefore, the clause following that semicolon (pertaining to the appointments of Ambassadors, Judges, and other Officers) is not dependent upon the first one, and may stand alone as if it were a separate sentence.
Consequently, the mention of a two thirds concurrence of Senators in the first clause does not apply to it. In essence, the two clauses could just as easily be written as two individual sentences, without their meanings being altered. For example:
He [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. 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... etc.
The Article refers to the "Advice and Consent" of the Senate, and it seems to me that understanding what the latter of those two words means is of utmost importance here. In the simplest of terms, to consent means to agree or accept. We determine if a legislative body consents to something or not by vote. Fifty—one is the universally accepted percentage for ascertaining a group's consent.
Article II added the two thirds majority (aka supermajority) provision exclusively to the clause pertaining to treaties in section 2, and it is not difficult to understand why such an exception would be made when considering the potential magnitude of such a situation. That same exception has also been made in other Articles of the Constitution regarding things like Impeachment proceedings, Constitutional Amendments, overriding a Presidential veto, and the expulsion of a member of Congress.
That being the case, it is also important to note that the framers of the Constitution rejected the principle of requiring that a two thirds majority be applied to the day—to—day business of government. James Madison, one of the primary architects of our founding documents argued strongly against the practice in the Federalist Papers:
"It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences."
Clearly our founding fathers did not intend to impose upon the President the burden of garnering more votes than those needed for a simple majority consensus in the Senate before his various nominees could be confirmed to their respective offices. Men like former President Madison understood the wisdom of using the supermajority rule sparingly, and it is this point specifically which has led me to write this article.
As anyone who's followed the national news over the past four years knows, Senate Democrats have used procedural rules relating to filibusters in order to block certain judicial nominees from getting a majority vote on the Senate floor. Instead of a simple majority affirmation being required to confirm a nominee, a 60 vote supermajority is needed for what is called cloture. Since Consent and Advice is all the Congress is allowed to concern itself with in such instances, undertaking a filibuster isn't, in my opinion, consistent with the letter or spirit of the Constitution.
But I'm getting a little ahead of myself. At this point I think I should explain what a filibuster is, and how the cloture rule comes into play. To begin with, the word filibuster is derived, appropriately enough, from the Dutch word for pirate, and was first used about 150 years ago as a means of allowing a small group of Senators (and House members as well) to hold the Senate (or House) floor for as long as possible, in order to prevent action on a bill. It basically amounts to a few people droning on and on until everyone else becomes so worn down by tedium that they succumb to the will of their colleagues doing the filibustering.
However, a filibuster can be stopped when 60 members agree to bring an end to debate on the issue. That is called the cloture rule. Unfortunately, the current Senate is composed of 55 Republicans, 44 Democrats and Jim Jeffords, who used to call himself a Republican before selling out to the left, and becoming an "Independent". In fact, neither party has held 60 Senate seats since the Democrats of the late '70s, and it's been over 90 years since the Republicans have gained that many. When one considers the current political climate in the U.S., ending a filibuster using the cloture rule isn't likely to happen any time soon.
Of course, another way that judicial filibusters can be halted is if the Senate's rules are changed, but for that to happen, two thirds of its members have to agree on the change, and that, of course, is even more unlikely than getting 60 votes for cloture... or so it would seem. However, there is one more option available to the majority that is rarely used, but still viable. It is what's often referred to as the "nuclear option", and it entails seeking a ruling from the Senate's presiding officer (who just happens to be Dick Cheney) on whether a particular Senate rule is Constitutional or not.
If the Vice President were to determine that the filibustering of judicial nominees is unconstitutional, all it would take is a simple majority to uphold that ruling, and the practice would end immediately. Subsequent to that event, every nominee who's been blocked in the past could get an up—or—down vote on the floor, with 51 percent of its members deciding his or her fate.
It is the contention of most conservatives, myself included, that because the authors of the Constitution specified the circumstances under which a supermajority was required, they obviously intended that a simple majority should be all that is necessary to conduct the Senate's business in every other respect, including the confirmation of judicial nominees. The logic involved in reaching that conclusion is so elementary that it's hard to believe anyone would even attempt to argue the point.
In my opinion, what our elected representatives in Congress have been allowed to do for as long as anyone alive can remember, is circumvent certain aspects of the Constitution via a set of rules that they've created for themselves, instead of going through the required process of trying to amend that document when they disagree with what it declares.
I find it ironic that, whenever it suits them, members of Congress are as quick as jackrabbits to bring up the fact that there's such a thing as a separation of powers in this country, yet when someone points out to them that they are infringing upon the rightful authority of the executive branch of government, they act as if they've just been kicked in the teeth with a steel—toed boot!
If you ask me, the so called nuclear option currently being discussed by many conservative Republicans in the Senate is one which is long overdue, and my Advice to them is, if they have the political will to press the button, they should do so without delay. I hereby Consent to letting them end this pattern of obstruction and unConstitutional behavior once and for all.
Edward L. Daley is the Owner of the Daley Times—Post