Bench Memos

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Initial Reactions


1. The Memorandum of Understanding is silent as to one nomination that is already on the floor, that of Thomas B. Griffith to the D.C. Circuit. It also is silent as to all the other nominations that are already pending but have not yet reached the floor.

All the more reason to think that this MOU marks only a very temporary cooling off. The issue will resurface soon, and it is now crystal-clear which Republicans need, ahem, reinforcement.

2. The Republican signatories’ agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories’ living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory’s determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory’s determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute “extraordinary circumstances”.

3. The idea that the Constitution contemplates that the President will consult with the Senate before making nominations is belied by the text of Article II, section 2, clause 2, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges. As a matter of basic grammar, the phrase “by and with the Advice and Consent of the Senate” plainly modifies “shall appoint,” not “shall nominate.” And the idea that consulting Senate Democrats about prospective nominees would somehow have any value is ludicrous.


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