COME TO THE PRESIDENT'S HOUSE FOR TEA AND CONSENT:

Is the filibuster of judicial nominees unconstitutional? (Larry Solum's Legal Theory Blog, 11/14/2003)

The notion that the Senate has a duty to give timely advice and consent is reinforced by George Washington's letter to the Senate Committee on Treaties and Nominations of 10 Aug. 1789. Here is what he wrote:

The President has the "power by and with the advice and consent of the Senate, to make treaties and to appoint Officers."

The Senate when these powers are exercised, is evidently a Council only to the President, however [necessary] its concurrence may be to his Acts. It seems incident to this relation between them, that not only the time but the place and manner of consultation should be with the President. It is probable that the place may vary. The indisposition or inclination of the President may require, that the Senate should be summoned to the President's House. Whenever the Government shall have buildings of its own, an executive Chamber will no doubt be provided, where the Senate will generally attend the President. It is not impossible that the place may be made to depend in some degree on the nature of the business. In the appointment to offices, the agency of the Senate is purely executive, and they may be summoned to the President.

Professor Larry Solum makes a brilliant contribution to the issue of the Senatorial filibuster, noting not only that the structure of the Constitution suggests a duty to give the President advice and consent, but also that the tradition of British privy councils, which the founders were building on, implied the executive's authority to demand advice and consent. This letter from President Washington to the Senate illustrates the founders' thinking.

Alas, while calling the Senate to the White House and forcing a vote may be the President's lawful prerogative, it is hardly to be expected that everyone will agree that it is so. Thus, the procedure would not solve the political problem raised by the filibuster. It might create a graver constitutional crisis: what if Justices were confirmed by this method, and a future Democratic president argued that Justices seated in this fashion had never been properly confirmed, and could be immediately removed and replaced? The ensuing crisis would resemble the 2000 Presidential election litigation, but without any well-defined procedures for resolving the dispute. (For whose authority would decide? Insofar as the Supreme Court resolves disputes, who is to be counted as a member?)

Thus, I think Solum's procedure, while it might be legally sound, would not meet political needs. I think there is no satisfactory way for Republicans to retaliate against the filibuster in the sphere of judicial appointments alone; the only effective retaliation will be to retaliate in the political sphere -- by refusing to support appropriations to Democrat-favored and Republican-opposed programs until the Democrats fulfill their duty to advise and consent. The price of non-cooperation should be non-cooperation. The key point is that, just as in the private economy refusing to transact with others means a person will have no pecuniary income, so in the political sphere refusing to transact implies a loss of political income. Democrats cannot expect Republicans to transact if Republican outflows and Democratic incomes are to continue, while all Republican incomes are to be obstructed. Once both sides lose their political income, both will have strong incentives to negotiate mutually acceptable terms of cooperation.

Posted by Paul Jaminet at November 14, 2003 11:52 AM