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Bench Memos

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MEMORANDUM OF “UNDERSTANDING”?



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I don’t even need my lawyer hat for this one, but I’ll put it on in a second. The politics are obvious enough. What the Democrats “give up” in this deal is the ability to filibuster except “under extraordinary circumstances.” What are “extraordinary circumstances”? Here was the Republicans’ big chance to hold the Democrats’ feet to the fire — to make them explain to the American people, concretely, exactly what their objections are to the Bush judges. To judges in general who share a judicial philosophy that where the Constitution is silent the American people should be trusted to govern themselves.

Did they do it? Of course not. “Extraordinary circumstances” means whatever an individual senator decides it means — much like the “living” Constitution means whatever a judge decides it means. It evolves with the circumstances — which is to say, it means nothing.

Oh, and the lawyer hat? An “understanding” — a contract — is, very simply, a meeting of the minds. Does anyone think there is a meeting of the minds here about what “extraordinary circumstances” are?

If Saad and Myers are not worthy nominees, there’s an easy remedy for that. They should be defeated on a vote of the full senate. A deal that stops them from getting a vote — that permits the senate’s constitutional obligation to be obstructed — is a betrayal.

And leaving aside that the advice clause does not — either literally or historically — mean the president should consult with the senate before making nominations, why should I care what the signatories believe the Constitution requires if they don’t think it requires them to perform constitutional “consent” by giving every nominee an up-or-down vote?



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