Bacon's Rebellion

Sen. Warner needs to read the Constitution

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by

James A. Bacon
in

The latest issue of “The Cuccinelli Compass” takes Sen. Warner to task for failing to side with the Republican majority in the U.S. Senate that wants to uphold the Constitution by confirming President Bush’s nominees by a simple majority vote and stop the Democrats from filibustering these nominations. In this issue, Sen. Cuccinelli provides a brief history of the filibuster rule in the Senate, and some comments on Senator Warner’s error.

This issue of Sen. Cuccinelli’s newsletter is an exceptionally good read. To read the entire issue, click here.

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  1. Paul Avatar
    Paul

    His whole argument is based on the idea that “advice and consent” means “HOLD A MAJORITY VOTE!!!!”

    Yeah. Great argument. Except that no where in the constitution does it say that “advise and consent” means 51 votes. It doesn’t say that anywhere. Maybe you can find it for me, Senator (it must be right below the part where it says: “local politician should comment on controversal national political issues in order to make his fundraising letter effective”)

    The Senate can make up its own rules. The constitution CLEARLY states that. If senate wants to get rid of the filibuster, they can do so. If they don’t, then they must obide by their own rules.

    By the way: our democracy was designed to be deliberate and to avoid radical change. The filibuster is a great check against the extremes. If it’s misused (as it was by CONSERVATIVES during the civil rights movement), then the American people can respond by VOTING THE BUMS OUT.

  2. Waldo Jaquith Avatar
    Waldo Jaquith

    At my most charitable, I’d say that this is a matter on which intelligent minds may disagree. For Cuccinelli to say that Sen. Warner just “needs to read the Constitution” and his failure to do so is an abridgment of his oath is way off-sides for a small fry like Cuccinelli to be saying about Sen. Warner.

    I disagree with Sen. Warner about nearly everything, but I have a great deal of respect for him. (Unlike, for example, Sen. Allen.) You’d never catch me making comments like this about him, and I’m of the opposite party. I don’t know much about Cuccinelli, but if this is a representative sample of the guy, I don’t think much of him.

  3. Paul Avatar
    Paul

    But other than that, welcome back, Phil.

  4. John K. Avatar
    John K.

    Phil, I’m with you and Sen. Cuccinelli on this matter. I don’t read the U.S. Constitution regarding the “Advice and Consent of the Senate” concerning judicial nominations to mean 60 votes. Others opposed to a simple majority vote want us to ignore the fact that when “supermajorities” are prescribed by the Constitution, it explicitly state such requirement. A good example (and one spelled out in the VERY SAME SENTENCE as that describing the executive authority to appoint judges) is the two-thirds Senate majority required to ratify treaties negotiated by the President. So, yes, I agree that Sen. Warner (among others) needs to re-read the Constitution.

    I say bust the filibuster.

    Meanwhile, for a cogent and insightful examination of the media bias and misdirection regarding public sentiment about the unprecedented use of the filibuster to stall judicial nominations, see this post at the Media Research Center.

  5. John K. Avatar
    John K.

    P.S. To be sure, there may remain some Republican fence-sitters and filibuster supporters (Sen. Warner among them), but things may finally be breaking President Bush’s way. Sen. Norm Coleman stated today there are enough votes to break the Democrat filibuster.

  6. Cold Harbor Avatar
    Cold Harbor

    I have no use for the Democrats’ tactics on these judicial nominations. Every one of these judges is qualified and should be confirmed. I hope the Dems pay a political price for their truculence. But it is not a constitutional issue – it’s purely a matter of changing the Senate rules. When you understand the issue in that context, it’s perfectly legitimate for Republican Senators of long standing to be concerned about the implications of a rule change. Frankly, I’m more concerned about the loss of a substantial minority’s ability to tie up a truly outrageous nomination. Republicans wil not always be in the majority. Senators like Warner and McCain have seen a good bit of Dem hijincks in their days of service. They may be doing us all a great service. Finally, I share other commenters’ appreciation of the silliness of a Ken Cuccinelli (or Phil Rodokanakis, for that matter) trying to dress down someone of John Warner’s stature on such a matter. It’s pure, cheap political grand-standing of the earthworm addressing the earl variety. Tend to your knitting in Richmond, Mr. C., there’s plenty you and your colleagues ought to be doing in the off-season to try to make that a functional government that serves the people.

  7. Paul Avatar
    Paul

    cold harbor: As a democrat, I’ll be the first one to admit that I’m not sure what’s wrong with these nominees. I think Democrats are really just fighting for the right to block supreme court nominees.

    John k: It doesn’t say explicitly either way. The constitution doesn’t say plenty of things. Just because there’s a high benchmark for certain things (treaties) doesn’t mean the senate can’t create a high one for others…no one can mount a serious argument that the constitution (a) protects filibusters of judges or (b) outlaws filibusters of judges. Anyone who tries is revealing themself as a partisan hack.

    What the constitution DOES do is give the senate the right to create it’s own rules.

  8. Paul Avatar
    Paul

    Where’s Ken? I know he’s reading this. Give us your take, Ken.

    Oh – and I find your newsletter amusing. Please keep writing it in the same over the top style that makes you one of the most funniest (unintentional) people in the Senate.

  9. John K. Avatar
    John K.

    Paul, I believe you’re making my point…. Since the Constitution doesn’t say either way, and since “supermajorities,” where they are required, are spelled out in the text of the document, the position that the Senate’s “advice and consent” role should be subordinate to such unwritten conditions is an ex post facto perversion of the Constitution.

  10. Paul Avatar
    Paul

    Semantic argument continued:

    It spells out where supermajorities are required, but it doesn’t say “These are the only supermajorities for ANYTHING.” There are dozens of other procedural matters where House or Senate rules require supermajorities.

    Even if you’re right, perversion is way too strong of word. Maybe you should say, “in my opinion, John warner has misinterpreted an incredibly vague section of the constitution”.

  11. John K. Avatar
    John K.

    Paul, I think my description of the Democrats’ unprecedented filibuster of judicial nominees is accurate.

    You cite “dozens” of other procedural matters where House or Senate rules require supermajorities. Assuming that’s true, there likely isn’t a breach of Constitutional authority because the matters are, as you described them, procedural in nature and subject to the vagaries of House and Senate Rules. However, in the case of the Senate’s Constitutional role in confirming the President’s judicial nominees, the framers clearly did not intend for supermajority approval of such nominees, otherwise they would have so stated.

    Once again, for example, the framers spelled out such a requirement for the ratification of treaties. Yet the framers indicated no such supermajority requirement for the confirmation of judges. If, as some believe, such a requirement should be imposed, then the only Constitutionally valid means of creating such condition would be to amend the Constitution. To argue that the Senate Rules permit the filibuster of judicial nominees misses the point. There is no Constitutional authority the filibuster of judicial nominees.

  12. Paul Avatar
    Paul

    First of all, I didn’t say there was constitutional authority for filibusters. Stop putting those words in my mouth. I said that it’s vague. If the constitution said, “For all matters not specified as needing a super majority, assume we mean a majority” then I’d see your point. But you’re stretching. BADLY. You’re reading what you want to read into it.

  13. John K. Avatar
    John K.

    I suppose this is simply one of those issues where we’ll just have to disagree. Some see the Constitution as malleable and from which “penumbras” are said to “emanate,” while others prefer to stick to the actual words included in the text of the U.S. Constitution.

  14. Phil Rodokanakis Avatar
    Phil Rodokanakis

    Paul: Thanks for welcoming me back. I was overseas for a few weeks and couldn’t bear dealing with this blog given the slow speeds of the dial-up connection I was dealing with.

    As to your argument that there is no mention in the constitution of the “advice and consent” meaning 51 votes, there is ample precedent of 200+ years. That’s just as solid legally as if it was written in black and white.

    Furthermore if you read Sen. Cuccinelli’s newsletter in its entirety you would have seen the point he raised about Article II, Section 2, Clause 2 of the Constitution.

    It specifically says 2/3 of the Senators present must ratify a treaty. It then continues to say that the advice and consent of the Senate is needed to approve presidential appointments.

    If the framers intended the 2/3 provision to also apply to the advice and consent clause, don’t you think they would have spelled it out just like the did for ratifying treaties?

    But even if that argument doesn’t connvice you, wouldn’t you have thought that the framers while they were still alive and active in our Government would have insured that “advice and consent” required a 2/3 vote by setting the precedent that was followed thereafter? They clearly did not set such a precedent, so your argument holds no merit.

  15. Phil Rodokanakis Avatar
    Phil Rodokanakis

    Paul: I agree with you that there is nothing particularly wrong with these nominees. The only reason the Dems are tying up the nominations, is to set the precedent so that they can block a future nomination to the Supreme Court. I don’t think that they are going to be successful in their attempt…

  16. Phil Rodokanakis Avatar
    Phil Rodokanakis

    cold harbor: I personally have no use for Sen. Warner. On an number of issues, he has left the Republican Party long ago. He’s becoming a senile old man who should just simply retire. We really need to set up a mandatory retirement age as we’re seeing more and more of these Judges and Senators clinging on to their office where they have no business being there any longer.

    Read Mark Levin’s book “Men in Black.” He’s documented a number of Supreme Court justices that stayed in office too long and acted reallly nutty.

  17. Cold Harbor Avatar
    Cold Harbor

    Phil: just to prove that I don’t disagree with you all the time, I think I would favor a mandatory retirement age. The damage that is done by ejecting a few guys whose minds are sharp is more than outweighed by a certain predictability that a public career will come to an end at an identifiable moment. The age itself should be fairly liberal (forgive me, Phil) – late 70s or 80, but we should all know the last year that a Senator or Supreme Court justice will serve. I really don’t have any particular problem with Warner (J.). I think he has been a good Senator for Virginia. But I do think he should have the opportunity to retire in peace and not feel compelled to run again simply because he is provoked by a raucous crowd of mean-spirited simplistic people whom he feels duty-bound to stuff one more time.

  18. AUF Avatar
    AUF

    For my review of Mark Levin’s “Men in Black”, see here.

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