Centerfield

Alito: No. Roe v. Wade was wrongly decided and I would vote to overturn it.

It could happen. Alito might be honest.

I think that simply is unfair. First, I don't know that is how he would vote, although obviously one could reasonably come to that conclusion. Second, this emphasizes why he shouldn't answer that question when asked. If he is already made his mind up regarding a case before hearing an oral argument than he has no business on the Supreme Court. If he goes onto the court knowing he would vote to overturn Roe, than again, he has no business on the Supreme Court.

Squeaks onto court. Roberts had three crucial advantages in picking up Democratic votes: he had a short paper trail, he was merely replacing another conservative, and he looked great on camera.

It looked good for Roberts even when he was O'Connor's replacement. He had one advantage, the public liked him. The public also likes Alito, if that continues, he will be confirmed handily.

Ted Kennedy actually had an interesting article in the Post today, regarding Alito, that I want to post on, later.

Posted by: Mathew at January 8, 2006 02:13 PM

Oberon, good post, but I have to pick a nit with your comment about Presidential signing statements. Judge Alito most certainly does not believe that Presidentila signing statements allow the President to ignore the law. His express of "support" for them is solely the same support that judges give to using committee reports and other items of legislative history to determine the meaning of statutes passed by Congress and signed by the President. Just as it is appropriate, WHEN THE LANGUAGE OF THE STATUTE IS UNCLEAR, to look to the intent of the Members of Congress who passed it to determine what the unclear portion means, it is also appropriate to look at the President's comments. Such statements show the President's intent when he approves the legislations. It is no more and no less relevant than the statements by members who voted on the bill. But for both types of statements, they are absolutely irrelevant when the language of the bill is clear.

Posted by: PatHMV at January 8, 2006 08:18 PM

I don't see how anyone can disagree that the Senator most likely to embarras himself and the Senate will be Biden. Ted Kennedy may well continue his line of questioning from the Roberts nomination ("why won't you do my job for me, Judge? Why? Why?"), and Durbin will continue to deploy a look of pained disdain while the nominee answers difficult constitutional questions ("why won't you rule for the little guy if the law clearly says the big guy is in the wrong, Judge?"), but Biden is the undisputed past-master of embarrassing himself and the Senate with his mind-boggling self-absorbotion, inability to focus on the task at hand, and sheer fifth-grade grasp of Constitutional law. He has demonstrated a compelling aptitude for doing so again and again and again and again...

I think the hot topics are going to be the scope of executive (not merely Presidential) power, and an attempt by the Dems to hammer Alito over the VRA and the redistricting cases, particularly now that one of the first cases Alito will hear will be, funnily enough, a redistricting case.

Needless to say again, I not only agree that Alito should overturn Roe, he should say as much:

It seems to me that a Republican nominee to the Supreme Court shouldn’t be going before the Senate Judiciary Committee and relying on slight of hand to bamboozle their way through questions on Roe. This implicitly seems to (mistakenly, in my view) concede the point that we are merely trying to obtain a policy-based result, rather than trying to correct a ghastly legal mistake which has corrupted Supreme Court nominations (and, by extension, Presidential elections) ever since. Instead, they should be going in there and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe. Stare decisis offers no defense against a wrong decision.

Or, as Southern Appeal's Verity ideally put it:

Just say it! Alito's writings indicate that he believes Roe was wrongly decided and indicate that Roe should be overturned. Stop the hedging, rationalizing, and discounting of everything Alito has said. Just say it: Roe should be overturned. Roe was wrongly decided and for over thirty years it has created havoc by allowing five people to decide a policy question that should be left to the democractic process. Address the merits. Educate the public. And stop hiding behind the "that was 20 years ago, when he was an advocate," panty-waste cop-out.

None-the-less, the reality is that I think it's very, very unlikely Alito will say as much; the GOP will praise this as being appropriate, the Dems will claim it's evasive, and frankly, the latter will be right, in my view. "Just say it," man!

Two results are possible, I think. The first is the scenario Oberon outlines. The latter has the Dems filibuster, and that filibuster being broken, either by a handfull of red-state dems, or by a group led by Robert Byrd who want to halt the nuclear option at all costs. I think the chances that Alito will blow up the building, as Sen. Graham charmingly put it, are fairly slim, not least because the Dems have to be aware that this is probably not Bush's last pick, and they have to save something for the showdown when Bush or his successor sends Stevens or Ginsburg's replacement to the Hill.

Try to keep in mind throughout this process: don't take the pronouncements of anyone on the left seriously. "Stop Souter or women will die!"

Posted by: Simon at January 9, 2006 08:57 AM

If he is already made his mind up regarding a case before hearing an oral argument than he has no business on the Supreme Court. If he goes onto the court knowing he would vote to overturn Roe, than again, he has no business on the Supreme Court.

Why?

Quite the contrary, it seems to me -- as noted here (October 28, 2005 11:06 AM) and here (July 19, 2005 05:59 PM) -- that Roe is a very good litmus test for a Judge's views on a broad swathe of issues, from the proper role of the judiciary to the scope of Federal power, to stare decisis. I have to admit that I agree with Senator Durbin (I think it was Durbin, at any rate) who pointed out during the Roberts hearings that there really could be no time when it is more appropriate than at the confirmation hearings. Of course a nominee can go onto the court having certain views about what the Court is and does, most of which have been covered by precedents stretching back to Marbury and beyond. Presumably, you would not want a nominee going on to the court who had "not already made his mind up regarding a case" if that case was Marbury v. Madison? You don't want a Judge going up there who thinks Congress should be able to do anything it likes; indeed, the predicted controversy for these hearings is, can the President do anything he likes, which directly impacts on questions of habeas corpus and judicial review. I assume that you want a nominee who has "already made his mind up regarding a case" if those cases happen to be Korematsu v. United States and Ex parte Milligan?

Once you've bit the bullet and accepted in principal that a Judge can have a view on any cases, why should some cases be special enough to merit a free pass?

In any instance, the reality is, I fear, that you're in a very small minority if you don't want the nominee going onto the court with a prior commitment vis-a-vis Roe. None of the Senate Judiciary Committee Democrats share this view; they absolutely want a nominee who has made up their mind about Roe. The only difference between Dick Durbin and I, in this regard, is the nature of the commitment we want from the nominee, although I feel that mine is more consistent than his, both logically and constitutionally.

Posted by: Simon at January 9, 2006 09:14 AM

Plus, does anyone really want a nominee to lie their way onto the Court? The idea that anyone has no opinion on Roe is frankly bizarre, let alone someone who went through law school in the immediate aftermath of that case. Of course Alito has an opinion about Roe; the very idea that he doesn't remains today as preposterous as when Clarence Thomas tried to claim it at his hearings.

The better question is:
Judge Alito, Roe v. Wade declared that there is a certain right that can be found nowhere in the text of the Constitution, and frankly admitted that even its author could not say precisely what rights are in the Constitution. Judge, could you tell us: are the rights protected by the Constitution specific and delineated, or amorphous and evolving? And if the latter, what approach would you use - not least to diminsh the effects of your personal views on the matter at hand - to determine if a claimed right is actually protected by the Constitution of the United States?

And again, this isn't to say that Alito will be honest about it. Only one nominee has freely discussed their views on Roe since that case. Want to take a guess as to which one?

Posted by: Simon at January 9, 2006 09:24 AM

Judge, could you tell us: are the rights protected by the Constitution specific and delineated, or amorphous and evolving?

Regardless of how Alito would answer, it seems appropriate to note the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I rather like the question posed by Kenji Yoshimo of Yale in the NYTimes this week-end:

4. If you were sitting on the court in 1992 when it refused to overrule Roe because of its status as precedent, would you have voted with the majority?

Posted by: Oberon at January 9, 2006 09:38 AM

Oberon-
As I have posted in the past, contra Randy Barnett, I don't believe that the Ninth Amendment creates a resevoir of judicial power to be used to constitutionalize practically any activity a transient majority of the Court feels appropriate. Rather, the ninth and tenth amendments, read in tandem, are federalism provisions which ensure that the bill of rights is not taken as a complete enumeration of the rights of the people. One must always keep in mind, first, that the bill of rights did not apply to the states when passed, and second, that the idea that sovereignty resided with the people, and thus power was granted from them to government was extremely novel in an age where throught the world, sovereignty resided with a monarch, and thus rights were granted from the monarch to the people. These two amendments ensure it is understood that the people retain all that is not surrendered, and that they are free to define such broad rights and exclusions from state government power as they deem appropriate. In other words, just because there is no federal right to abortion, that does not preclude the people of Connecticut creating a right to abortion in the Connecticit Constitution.

We have to stop treating the federal constitution as the panacea for everything that we disagree with in society. The genius of its design is precisely that it leaves all but the most fundamental issues to resolution in the democratic process it creates, and I would suggest that a Judge who is not committed to that design shouldn't be sitting on any court, let alone the Supreme Court. Adequately put by Justice Stewart, dissenting in Griswold v. Connecticut:

[I]t is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases “agreeably to the Constitution and laws of the United States.” It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.

Posted by: Simon at January 9, 2006 09:49 AM

I wonder if Bork would have gotten confirmed if he had trimmed his eyebrows...

...right now I think Alito will get confirmed by a close margin, but I wouldn't put money on it. Someone at Volokh put forward the interesting idea of asking nominees how they'd have voted on previously decided SCOTUS cases. I like this because it cleverly end-arounds the evasive use of "I can't say how I'd vote on this hypothetical because it might lead to the need to recuse myself in future cases."

Polls have suggested that a solid majority of Americans DOES think it's proper that nominees answer direct and pointed questions about how they'ds rule in the future. So any filibustering or aisle-crossing, if it occurs, will most likely be based on evasive responses. Seems to me that those who (can be predicted to) oppose Alito have largely taken a tack of patience, of suggesting the public should see what he says. So if a grand opposition arises, they are probably hoping to uncover a good opportunity to use Alito's own words to mount a very vocal last minute opposition, which could come in one of two forms.

If Alito is forthcoming about his opposition to Roe, the opposition will try to hang him on that, since a majority of Americans favors keeping Roe, even though they also favor more substantive restrictions on abortion that it seems to have allowed so far. Or if Alito demurs, they'll be left trying to make the case that a nominee unwilling to be forthcoming to the people is unfit. That's a difficult sale to make, since it relies on widespread public attention and zeal, and I'm not sure it's there.

Personally, I'm not yet satified with Alito, so I'd like to hear more. My impression of him so far is that he leans too far towards the justice as foot-soldier/role player. In the past, scotus justices have been placed in positions of crucial historical importance where they've been forced to choose between allowing troubling injustice to continue or acting courageously based on conscience. History has shown that sometimes scotus justices are put in the position where they need to lead. [and of course, like other leaders, they might fu(k up...]

Now those who see disagree with me, as is well known here, see the power and virtue of our system as one which relies upon each actor playing his or her rigidly defined role and not one iota more. I see the ability of humans to act with power and conscience (as human beings, in other words) as the saving grace of large bureaucratic systems, the oil without which a rigid and creaky system would grind to a halt.

But none of this means I know where Alito stands. I am hoping to see him be forthcoming and open on all questions which are serious and legitimate ones. Personally, I'd like to see all questioning senators limited to 30 or 40 seconds per question in most instances, to limit the demagoguery. On the last go-round, each of the senators I listened to showed themselves to be tiresome partisan windbags who prefaced each question with a half minute of preaching to their choir.

Posted by: bk at January 9, 2006 09:50 AM

I wonder if Bork would have gotten confirmed if he had trimmed his eyebrows...

Hmmm...I've been working on the Eyebrow Theory of Presidential Candidates, which proves why neither Dukakis nor Gephardt had a chance...I may have to expand my research.

Posted by: Oberon at January 9, 2006 10:26 AM

...which points at a good definition of impolitic, someone who insists that the "right" response to a perception problem is to do nothing because it "shouldn't" matter.

If you have a big job interview, get a good grooming, wear clean underwear and a nice suit, be on time, and be polite. I mean, you WANT the job, right?

I'm still waiting for someone to lose the Presidency because during a key debate, one candidate had a lintball in the hair or an unidentified peice of schmutz on the face. Watching football on the bro-in-law's huge 68 inch TV with HDTV brought this home to me. Robert Kraft and Al Michaels are too old to be talking heads on HDTV, they had me voting for low-res. And John Madden looked fresh from the casket with his white hair and chestnut brown bushy eyebrows. At least we couldn't see his tie tucked into his pants this time.

Posted by: bk at January 9, 2006 12:30 PM

Actually Ginsburg said flat out that she agreed with Roe v Wade, I don't know if this is who Simon was referring to.

Posted by: Rick DeMent at January 9, 2006 01:51 PM

That's not quite what Ginsburg said. She has done her fair share of criticizing the Roe opinion, but said during her hearings that "[i]t would not be appropriate for me to go beyond the Court's recent reaffirmation [in Casey] that abortion is a woman's right guaranteed by the 14th amendment; it is part of the liberty guaranteed by the 14th amendment." Ginsburg Hearings at 150. Cf. Roe, 410 U.S. 113 at 153:

The Constitution does not explicitly mention any right of privacy . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment . . . the Fourth and Fifth Amendments . . . in the penumbras of the Bill of Rights . . . in the Ninth Amendment . . . or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment . . . This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

In this regard, despite her disagreements with the ruling, Ginsburg appears to take Roe more seriously than Roe takes itself. The mere fact that the opinion cannot bring itself to say which provision of the Constitution is actually infringed is damning enough, as Justices Stewart and Black noted, dissenting from Griswold:

In the course of its opinion, the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. [p528] But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law . . . [T]he day has long passed since the Due Process Clause was regarded as a proper instrument for determining "the wisdom, need, and propriety" of state laws . . . No soldier has been quartered in any house. There has been no search, and no seizure. Nobody has been compelled to be a witness against himself . . . [T]he idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder. What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.

(Griswold, 381 U.S. at 527-29) (Stewart, dissenting).

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures . . . The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean the same thing are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is, of course, that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous.

(Griswold, 381 U.S. at 509-12) (Black, dissenting).

Roe is an appropriate subject for discussion, because to subscribe to Roe is to subscribe to a judicial theory that might be nice to tinker with in law review articles, but which should permanently enjoin a Judge's elevation to the Supreme Court.

Posted by: Simon at January 9, 2006 03:55 PM

Simon,

So in more plain terms, you mean to say that all nominees should be asked how they would have ruled on Roe, and whether the right of privacy exists constitutionally..and that unless they can honestly answer "against" and "no," then they are unfit to serve on SCOTUS, IYO?

Posted by: bk at January 9, 2006 04:17 PM

Simon,

Right, that is the text I was referring to, did Roberts say anything that candid RE: the 9th, privacy, or abortion? Will Alito?

Posted by: Rick DeMent at January 9, 2006 04:31 PM

Brian,
Can I unbundle that question into what I see as its two constituent questions, viz., (1) should all nominees be asked about Roe and its underlying jurisprudential philosophies, and (2) does a particular answer disqualify them from membership of the Supreme Court?

The first question is a broad question of public policy, while the second is a personal opinion. The answer to question (1) is, yes, I think all nominees be asked about Roe and its underlying jurisprudential philosophies, and I think the arguments for them not answering such questions are pretty weak. I think you can take this position whatever your opinion of Roe might be, and whether you would vote for them or against them on the basis of their answer. I am fully aware that this is not the norm; all nominees prevaricate. I'm saying they shouldn't.

The answer to the second question is, in my view, anwering that they approve of Roe -- not so much the right to abortion, specifically, but more broadly, the role for the courts implicit in Roe, and the jurisprudential underpinnings of the case (such as they are) which makes the Constitution a squishy, amorphous tool of the majority -- then, were I a member of the Senate, I would use all the legislative tools available to preclude the nominee from sitting on a Federal court.

I don't think this is to bifurcate the question, since it is perfectly possible for two people who desire diametrically opposed results to concur on a mutually-agreeable process. Indeed, if this is not true, the future of the Constitution - which rests explicitly on this proposition - is in dire jeopardy.

Posted by: Simon at January 9, 2006 04:41 PM

Rick:
Roberts did indeed say that he believes that when the Fourteenth Amendment speaks of "liberty," he believes that this term means more than simply freedom from restraint. At first he was careful to say that the Court has often held as much, but in answer to a question I think from Schumer's last round of questions, he specifically said that some people believe that the due process clause means what it says, but he is not one of those people. Needless to say, yours truly was not pleased. He was more carefull (i.e., accurate) regarding the "right to privacy," stating that the Constitution protects many privacy rights, but I don't believe he endorsed the general right to privacy implicated in Griswold, Roe and so on.

GPO does not currently have the transcript, as far as I can find (source link), which means I'm relying on memory and cannot offer a direct quote.

Posted by: Simon at January 9, 2006 04:52 PM

were I a member of the Senate, I would use all the legislative tools available to preclude the nominee from sitting on a Federal court.

So your answer is, again, "yes," but your caveat is that you think the appropriate place for such precluding rests only within the discretion of each individual senator exercising his responsibilty to advise and consent. Do I have you right?

If so, then you are saying that it's perfectly fine for each senator to have a litmus test, that's precisely what they have the right to do...conceptualize the issue according to their conscience, their philosophy, and their understanding of the needs and desires of their constituents. If that's what you're saying, I agree.

Posted by: bk at January 10, 2006 09:41 AM

Brian-
Yes, that's more-or-less what I'm saying, but subject to one additional caveat: I do not believe that the advice and consent clause is an individual, as opposed to an institutional responsibility. It is the Senate, not the Senators which advises in and consents to the confirmation of Presidential nominees. Not only does the Constitution positively grant that power to the Senate as an institution rather than its constituent members as individuals; not only would, if it did grant the power to individuals, would that be the only place in the Constitution where an individual member of the legislature is empowered, rather than a legislative body as a whole; not only has this always been the historical pracise; but to do otherwise would be untenable. It would hand each individual Senator a veto; by definition, a requirement that Senators advise and consent to nominations would require every nomination to pass by unanimous consent. The business of government would grind to a halt.

In the present context, of course, this point is incidental, but I think that becomes a very important point when discussing the nuclear option (which I can practically guarantee we haven't heard the last of), because what you're talking about in that context is precisely how the Senate may exercise its duty to advise and consent.

Posted by: Simon at January 10, 2006 01:00 PM

Not only does the Constitution positively grant that power to the Senate as an institution rather than its constituent members as individuals yadayadayada

That's an interesting argument Simon, since it dovetails so nicely with your desire to constrain senatorial consent. But I have serious doubts that you are nearly as right as you are wishful. I've learned that stylizations such as a series of banded "not onlys" in your prose is usually an sttempt by you to provide massive fortifications for you most suspect contentions.

But I know that you are intelligent enough to know that rationally it is every bit as plausible to presume that the the senate is precisely equal to the sum of its parts, the senators, and that every right held by the senate as a whole trickles down sensibly to each of its members. IMO, every senator, as a member of the senate, enjoys the individual right to provide advice and consent , since the senate enjoys that right as a group and each senator is a member of the group. If you ask me, to claim otherwise strains credulity. To say that the senate has the responsibilty to provide advice and consent MUST mean that each senator may choose to withhold consent.

Posted by: bk at January 10, 2006 02:32 PM

But I don't think there's any reason to suspect that anyone should think that unanimous consent is therefore required. IMO it's far more reasonable to presume that since the constitution doesn't set out particular guidelines for this particular senatorial responsibility, the senate should fulfill this role using the same guidelines given elsewhere, and also with the same sort of leeway granted elsewhere to work out the details as it sees fit.

FWIW, as an editor, I am skeptical of taking much meaning from the supposed fact (which you seem to be implying) that the constitution always choses to say "the senate" instead of saying "a senator" or "senators." This could VERY VERY EASILY be no more than an artifact of a editor or careful writer wanting to phrase things the same way each time for the sake of consistency.

Posted by: bk at January 10, 2006 02:43 PM

Brian,

That's an interesting argument Simon, since it dovetails so nicely with your desire to constrain senatorial consent.

Could you explain how my apparent "desire to constrain senatorial consent" has been manifested? It seems to me that I am actually claiming a broader range of criteria on which Senators may decide to vote for or against a nominee than is perhaps otherwise advanced by either party.

As I explained in my previous post, I don't think it is at all as plausbible to suggest that each individual Senator is implicated by the advice and consent clause. In what manner does a Senator who votes against Judge Alito's confirmation "consent" to that confirmation?

The Senate is, after a fashion, the sum of its parts, but in all but a few actions, the Senate is the sum of a majority of its members, and throughout history, the Senate has excercised its perogative to consent in all nominations by majority vote, not unanimous consent. Almost half the members of the Senate refused to consent to the nomination of Clarence Thomas, but the Senate none-the-less consented to his confirmation.

Every Senator has a part to play in providing the Senate's consent, but their individual consent is not required.

Posted by: Simon at January 10, 2006 03:08 PM

I don't think there's any reason to suspect that anyone should think that unanimous consent is therefore required. IMO it's far more reasonable to presume that since the constitution doesn't set out particular guidelines for this particular senatorial responsibility, the senate should fulfill this role using the same guidelines given elsewhere, and also with the same sort of leeway granted elsewhere to work out the details as it sees fit.

The Senate can choose any procedures that it likes for providing its advice and consent (a matter I am currently discussing in comments at my blog, as long as those procedures do not conflict with the directives and requirements of the Constitution. My point about the requirement for unanimous consent is that if it is the Senate that is required to consent, the Senate may set in its rules any requirements it prefers to confer that consent; it may no more nor less validly require unanimous consent (either for or against) than requiring a simple majority or a submajority or a simple majority. It can make whatever rules it prefers.

But, if each individual Senator must advise and consent, as you suggest, nominations can only be resolved by unanimous consent. That is, if the Senate must consent, a minority of Senators can refuse to consent, and vote against the confirmation, but if the duty is individual, then any Senator who votes against refuses his consent. This seems to me to be an entirely reasonable reading.

FWIW, as an editor, I am skeptical of taking much meaning from the supposed fact (which you seem to be implying) that the constitution always choses to say "the senate" instead of saying "a senator" or "senators." This could VERY VERY EASILY be no more than an artifact of a editor or careful writer wanting to phrase things the same way each time for the sake of consistency.

The Constitution imposes a number of duties and responsibilities on Congress, and on each house of Congress. What you are suggesting is that each individual Senator has an individual duty; can you point to any other provisions of the Constitution which comparably charge an individual member of Congress with a duty or responsibility, rather than upon a chamber? Posted by: Simon at January 10, 2006 03:18 PM

Simon, I'm not convinced either one of us is making ourselves properly understood to the other. Let me track back a bit.

I understood some of your previous statements to be arguing that because the Senate as a whole must give its advice and consent, it couldn't filibuster. Which I think is crap. I don't see any reason based on the constitution's choice of wording why the appropriateness of filibustering should be different in this particular case. Definitely not because the consitution says "the senate" instead of "senators." I find that a stretch. But maybe this is what you meant? Of course, since senators can make the rules for the senate, they can choose to set different rules for different situations. The further "of course" which stems from that is that the envoking of the "nuclear option" would be a case of the blindingly obvious use of political mechanism for political gain. We might all come to be sorry should we head down thius road. Or not. Maybe we'll see.

FWIW, and as I stated above, I AGREE that individual consent is not required, except insofar as this means making a yea or nay vote, opr witholding that vote. I guess I am puzzled as to why you think anyone serious belives that constituion calls for a unanimous vote.

My other point about consent is just that it has to mean in this context "approve or disapprove " not just "approve." In other words, even though it strictly says advise and consent, it means that the senate has to consider the nominee It can't possibly mean that the senate must give its consent, even though that's what it says.

Posted by: bk at January 11, 2006 09:34 AM

Brian,

I understood some of your previous statements to be arguing that because the Senate as a whole must give its advice and consent, it couldn't filibuster. Which I think is crap. I don't see any reason based on the constitution's choice of wording why the appropriateness of filibustering should be different in this particular case. Definitely not because the consitution says "the senate" instead of "senators." I find that a stretch. But maybe this is what you meant?

We are absolutely misunderstanding one another!

The filibuster against judicial nominees is absolutely not unconstitutional. I wrote about this at some length last year, and more briefly, in comments, here in recent days (for the record, I also said as much here at Centerfield, often: 1, 2, 3).

The point I was making is that as long as it is the Senate, as an institution, that is required to provide advice and consent, it may set whatever rules and procedures it so desires for giving that advice and consent. If the Senate wishes to have rules that permit the filibustering of debate to delay a vote (and therefore to deny the consent of the Senate), then the Constitution has no argument with that process.

My point about unanimous consent relates to your suggestion (or what I percieved as your suggestion) that each Senator has an individual responsibility to advise and consent (as opposed to an individual role to play in the institutional process of the Senate's chosen method of giving advice and consent). What I was saying is that if each individual Senator can advise and consent, logic demands that each individual Senator must advise and consent, which would require a unanimous consent agreement.

I hope this clarifies the point.

Posted by: Simon at January 11, 2006 10:31 AM

66-32, two MIA.

Nail that pesky potted meat!

Posted by: Tully at January 11, 2006 10:49 AM