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The definitive judicial appointments post

Posted by Richard on May 19, 2005

I just discovered Carl Frank’s May 17 post at No Oil for Pacifists entitled "The Framers Had Nukes" (and since he quotes himself, I guess I missed an important earlier post as well). I’m impressed. I think he’s destroyed the argument that the Constitution is silent on the supermajority issue:

 Article II, Section 2, clause 2 contains three sub-clauses; only the first two are relevant to the Constitutionality of the filibuster in the context of judicial confirmation. For convenience, I’ve added bullets and one intervening return, but the words and punctuation are unaltered:

  • 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, whose Appointments are not herein otherwise provided for . . .

The two sub-clauses are broadly similar; together with the omitted language, they’re the "advice and consent" clause. Nonetheless, there are two key differences. First, they prescribe the process for different events: the first when ratifying a treaty; the second for Presidential appointments. Unsurprisingly, the two sub-clauses are called "treaty" and "appointments" respectively. I’ll return to the second difference presently.

The treaty and appointments sub-clauses are grammatically severable: a semi-colon functions as a period separating related but independent thoughts. This is further reinforced by the unnecessary repetition of the subject ("he") of the second sub-clause. Though related, the sub-clauses stand on their own–independently, in other words.

Viewed in that light, the second variation is unmistakable: Senate advice and consent for a treaty requires 2/3rds or more of the vote for approval; advice and consent on appointments contains no such provision. It is impossible to imagine this omission an oversight–though the Founders were brilliant, the Constitution went through several drafts. Under "expressio unius est exclusio alterius," [the mention of one thing excludes others] the changed wording is a deliberate signal that nothing more than a simple majority governs appointments.

Carl goes on to argue that advice and consent votes differ from votes on legislation:

The Senate isn’t Constitutionally obliged to vote on any legislation–making endless debate kooky, but Constitutional. Here, by contrast, the Constitution demands a vote. A majority vote. Debate isn’t a vote. Where a vote is required, a Senate rule can’t lawfully burden the process in a manner different from the standard codified in the Constitution. The carefully crafted balance between legislative and executive power in the "advice and consent" clause trumps any rule–and any indirect evasion of the Senate’s Constitutional responsibilities.

There’s more. Read the whole thing.

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One Response to “The definitive judicial appointments post”

  1. Anonymous said

    Thanks for the review and linky-love! Part 1 of the filibuster analysis is here.

    No Oil for Pacifists

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