The Framers Had Nukes

Returning to the filibuster: Previously, I demonstrated that omission of any supermajority provision in the Constitutional process for judicial appointments was consequential:

Traditional rules of legal interpretation include "expressio unius est exclusio alterius," the mention of one thing excludes others; in other words, the presumption that omissions are intended. 2A Sutherland, Stat. Const. §§47:23-47:25 (6th ed.). Here, the Framers intentionally distinguished between majority and supra-majority voting. . . The fact that the Constitution mandates supra-majority voting in some instances demonstrates the Framers intended to exclude it elsewhere.

As evidence, I pointed to the parallelism in the relevant text. 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 changed wording is a deliberate signal that nothing more than a simple majority governs appointments.

I also noted that legislative rules cannot expand the Constitutional authority of the Senate, citing U.S. v. Ballin, 144 U.S. 1, 5 (1892). Which means, as Scurvy Oakes observed, no Senate rule could up treaty ratification requirements to 90 percent of the vote. So the question is whether the filibuster rule, as applied under the "appointments clause," is Constitutional.

(Though not essential to my argument,¹ I wasn't seeking to mislead Josh about the filibuster's pedigree. I was merely showing the Senate had no filibuster when the Constitution took effect, a point admirably documented in Josh's recommended article. In fact, the filibuster first appears in 1825. Then it disappears, replaced by unanimity in 1872. Then pops-up again, in the form of Senate Rule XXII, in 1917. Which changed, narrowed and altered many times since. Plainly, the filibuster cannot pretend to be founded by the Fathers and suffers severe tradition interruptus.)

More relevant is Dingo's argument that the filibuster addresses debate, and so can't be voided by Constitutional language about voting. This proves too much. The filibuster rule is Constitutional for some votes (which is why my citations concentrated there); but the advice and consent clause differs from most other votes in that it requires Senate action. 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. UPDATE: See Rutan v. Republican Party of Illinois, 497 U.S. 62, 77-78 (1990) ("What the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly."); Bailey v. Alabama, 219 U.S. 219, 239 (1911) ("It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment.").

With that as preface, I'm pleased to pass along a new article on the history of the "advice and consent" provision. It's by Chicago lawyer Clarke D. Forsythe, director of the Project in Law & Bioethics at Americans United for Life, published on NRO, and shows the Founders explicitly rejected supermajority voting under the appointments clause:

[T]he particular process in the Appointments Clause — of presidential nomination and Senate “consent” by a majority — was carefully considered by the Constitutional Convention. A number of alternative processes for appointments were thoroughly considered — and rejected — by the Constitutional Convention. And this consideration took place over several months.

The Constitutional Convention considered at least three alternative options to the final Appointments Clause: (1) placing the power in the president alone, (2) in the legislature alone, (3) in the legislature with the president’s advice and consent.

On June 13, 1787, it was originally proposed that judges be “appointed by the national Legislature,” and that was rejected; Madison objected and made the alternative motion that appointments be made by the Senate, and that was at first approved. Madison specifically proposed that a “supermajority” be required for judicial appointments but this was rejected. On July 18, Nathaniel Ghorum made the alternative motion “that the Judges be appointed by the Executive with the advice & consent of the 2d branch,” (following on the practice in Massachusetts at that time). Finally, on Friday, September 7, 1787, the Convention approved the final Appointments Clause, making the president primary and the Senate (alone) secondary, with a role of “advice and consent.”

Obviously, this question is something that the Framers carefully considered. The Constitution and Supreme Court decisions are quite clear that only a majority is necessary for confirmation. Neither the filibuster, nor a supermajority vote, is part of the Advice and Consent role in the U.S. Constitution.

Powerful -- conclusive? -- evidence that appointments clause voting requires no more than a majority.² Now it's more than solely silence--the Framers rejected the very supermajority now imposed via filibuster.

In sum, the advice and consent clause:

1. Obliges a Senate vote on Judicial nominees;



2. Forbids, in a relatively immutable fashion, supermajority voting except for treaties; and



3. Outlaws indirect assaults that impair or burden # 1 or # 2.

Conclusion: As applied to Presidential nominations under the "appointments" clause:

The Constitution doesn't authorize a filibuster. In fact, the Framers mandated supra-majority voting in some circumstances, but rejected it elsewhere. So the filibuster is unconstitutional, and no mere Senate rule can save it.

Or more simply, the supermajority requirements of Senate Rule XXII may not be invoked when offering "advice and consent" on Judicial nominations. America's Founding Fathers already had the bomb--so forbidding filibusters of judges is Constitutional, not nuclear.

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¹ I've no interest in debating whether the filibuster is good policy (that's Baseball Crank's domain) whether Republicans did it too, or whether Abe Fortas was or was not filibustered. Oh, and Josh: I cited plenty of authorities for my view--but you halted at the first hyperlink.

As for Geoff, what puts a judge on his side of the center line? Is "fairly far to the right" defined as "anyone opposed to unrestricted abortion on demand or judicially imposed gay marriage?" Where do you position Judge Pryor? The Dems say they're just seeking nominees with judicial temperament--a lie exposed by their longstanding and unjust treatment of Pryor. I'd be most interested in your reply; so, I'm sure, is MaxedOutMama.

² Don't miss Forsythe's showing how the placement of "advice and consent" in Article II (executitive power), as opposed to Article I (legislative power), supports the same conclusion.

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