« Lugar Running for Sixth Term | Main | Grams Drops Out of MN Senate Race »

April 25, 2005

The "Constitutional Option"

One of my professors at Bowdoin College, Scott Sehon, wrote this editorial for the Portland Press-Herald on the constitutionality of the fillibuster:

So, if nobody has questioned the Senate rule [allowing fillibusters of judicial nominees] before, why would anyone think that it is unconstitutional? The conservatives suggest that the filibuster is constitutional for legislation, but not for the approval of judicial nominees. In support of this view, they cite the "advice and consent" clause of Article II, which says this: the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges.

Senate conservatives claim that this clause somehow precludes the Senate rule requiring a supermajority to end debate. This is an extremely adventurous reading of the Constitution. On the face of things, the "advice and consent" clause simply limits the president's power to appoint judges: He can appoint a judge only if the Senate consents. Article II says nothing about the rules for senatorial debate on the matter.

By claiming that the filibuster rule is unconstitutional, Senate conservatives will be engaging in exactly what they say they are trying to prevent: activist readings of the Constitution to get a desired result by being unfaithful to the text. Even the most jaded observer must be stunned by such brazen and open hypocrisy.

Posted by Max at April 25, 2005 11:55 PM

Trackback Pings

TrackBack URL for this entry:
http://oursenate.com/cgi-bin/mt/mt-tb.cgi/487