The Advice and Consent Clause: A Constitutional Obligation

The role of the President of the United States consists of two distinct functions first, that of Head of State and secondly, that as guardian of the Constitution through judicial appointments. And that is a matter we wish to address in this column.

The Supreme Court is not a creation of the Congress but is called for by the US Constitution and it is key to our system of Constitutional government. Before the Republic was a half-century old, Alexis de Tocqueville wrote, "scarcely any political question arises...that is not resolved sooner or later into a judicial question." The truth of that statement has been established. Matters of the judiciary may not loom as large in the minds to some, as the War on Terror or the economy. But the decisions of the US Supreme Court have far reaching implications to this generation and future generations of Americans. And the makeup of the Court is closely a part of the role and authority of the US President along with the advice and consent function of the United States Senate. Point of significance, the future direction of the US Supreme Court and constitutional law may very well be at stake during the term of this President and during the term of this Senate.

A September 2004 AP-IPO's poll revealed that 56 percent of Americans prefer the appointment of conservative minded judges while 37 percent prefer those of a liberal persuasion. A clear majority of Americans believe that it is the responsibility of judges to strictly interpret the law; that legislation from the democratically elected branches of government, not from the bench, should be the engine of social change. The rulings on the Pledge of Allegiance and the Ten Commandments are unsupported by the wording or intent of the Constitution. Simply, the Constitution designed to ensure there would be no federal church and that every American would be free to practice their own religion or no religion at all. Princeton University Professor Robert George has argued that judicial restraint itself is a moral value. The notion of a "living Constitution" that can effectively be amended by an unaccountable judiciary clearly contradicts the democratic concept of rule by the people.

Nonetheless, judicial review is a valuable check on absolute majority rule, protecting those rights so fundamental that they have been enshrined in the Constitution, ensuring that they will not be denied to an unpopular group at a time of great passion. However, only a jurisprudence constrained by the literal wording and original intent of America's founding document can possibly keep this check on majority impulses from inviting judicial lawmaking.

The impasse over judges is one of the most explosive issues facing the 109th Congress. Federal judicial nominee William G. Myers III, will be one of the first this term, to face Judiciary Committee action. Myers is one of the seven appellate court nominees blocked by liberal delaying tactics in Bush's first term. The Judiciary Committee appears certain to endorse Myers, meaning the showdown will occur-as it did last summer-on the Senate floor. Sixty votes are needed to stop a filibuster and proceed to a confirmation vote. Republicans hold 55 seats, positioning Democrats again to block the contested nominees, who they say are outside the political mainstream.

Now for the first time in 214 years of American history a minority of senators is seeking to extend the tradition of filibustering from legislation matters to judicial nominees who they know enjoy support of a majority of the Senate. The unprecedented extension of a filibuster to judicial nominees supported by a majority of the Senate threatens to raise the vote required for confirmation from 51 to 60 in violation of the Advice and Consent Clause. Were the group of liberals to succeed in this pattern, it would greatly weaken the intended power of the president to appoint federal judges who are supported by a Senate majority. Thus, it would tend to undermine judicial independence by giving a minority of senators, over and above the majority, a veto over who becomes a judge. And thus, if this were to prevail, the minority would rule.

Fidelity to the text of the Constitution and 214 years in which there was not a single sustained floor filibuster of judicial nominees, is ample evidence that the plan this time to thwart judicial nominees from entering the judicial system will not be sustained and the plan of a filibuster will not, and should not meet the test of constitutionality. And that is how we see it FROM OUR PERSPECTIVE.