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April 24, 2005

Constitutional Option

Reader John Ballard of the blog Hootsbuddy's Place writes in support of the filibuster at his blog and in comments to Matt's post on the subject earlier today.

John makes some very interesting points, but I'm afraid that none of those points matter if the filibuster of presidential appointments is a violation of the Constitution.

The Senate has a Constitutional obligation to advise and consent. The filibuster of judicial nominees disenfranchises a majority of United States Senators from fulfilling their constitutional obligation to advise and consent.

The Senate was specifically designed to protect the views of the minority and that protection is made explicit in the Constitution. The most obvious protection of minority rights is evident by the "first among equals" institutional and voting framework where each state, regardless of population or size, has two votes. Also, where a supermajority among Senatiors is required, it is explicit in the constitution.

The Federalist was written to explain and promote a Constitution which, in its original version, contained super-majority requirements in seven places: Article I requires votes of two-thirds to convict on impeachment (3, cl. 6), to expel a Senator or Representative (5, cl. 2), and to override a presidential veto (7, cls. 2 & 3). Article II requires a two-thirds vote in the Senate to consent to treaties (2, cl. 2) and called for special majorities if the election of the President should be referred to the House of Representatives (1, cl. 3). Article V requires two-thirds of Congress and three-fourths of the States to amend the Constitution. Article VII required ratifications from 9 of the original 13 States before the Constitution could go into effect.
Nowhere in the writings of our founders (that I have found) did they suggest that a supermajority is required to confirm an appointment to the judicial bench as nominated in accordance with the US Constitution by a President.

Since the filibuster of presidential nominees is unconstitutional, then it should be done away with. Until someone convinces me that the filibuster of Bush's nominees is constitutional, I won't have much tolerance for arguments in favor of retaining it. No Senate rule should be above the US Constitution.

For more on the fight to restore the Constitution, read Hugh Hewitt and Confirm Them, daily.

Posted by Rick at April 24, 2005 10:08 PM

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