Bench Memos

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I Respectfully Dissent


from the argument made today by my Brother McCarthy. (Remember when Supreme Court justices referred to each other that way? They gave it up long ago, even before abandoning “Mr. Justice” on the eve of Sandra Day O’Connor’s joining the Court. Why they couldn’t use “Sister” and “Madam Justice” when the ladies joined them I’ll never know.)

The current abuse of the filibuster against judicial nominees is a Bad Thing indeed–and it may be appropriate for the majority to put a decisive stop to it with the so-called “nuclear” ruling from the chair–but I cannot regard it as unconstitutional. Andy introduces a parade of horribles under the Senate’s power to make its own rules–that it might adopt a rule to consider presidential nominations only every other year, for instance. But as John Marshall said long ago, “arguments drawn against the existence of a power from its supposed abuse are illogical, and generally lead to unsound conclusions.” The Senate might indeed do any of the things Andy supposes, but I have difficulty seeing any of them as unconstitutional either. Stupid, yes, even politically suicidal; unconstitutional, no.

Contra Andy, there is no intrusion by the Senate on the powers of the president here. The power of naming judges to the federal bench is jointly but not equally held by the president and the Senate, and if the Senate adopts a rule making it extremely difficult to do its part in the process, that is no injury to the president’s prerogatives.

Andy is right that all the arguments but one about the filibuster are “mostly makeweight.” The free speech of dissenters, the promotion of deliberation–these are all hogwash, as he points out. But that one argument for the legitimacy of the filibuster–not for its use in any given instance–is quite good enough: Article I, section 5’s power of each house to “determine the Rules of its Proceedings.” Without getting into the dicier question of what violates the “spirit” of the Constitution, where the “letter” is concerned the decisive argument for the filibuster’s constitutionality is simply that the Senate can do it, and no other institution can gainsay it.

An argument as good or better can be made that the president’s recess appointments of judges are violations of the “spirit” of the Constitution. The clause under which they were made almost certainly did not contemplate the very short recesses and adjournments of the modern Congress, and the intent of this presidential power was surely not to enable presidents to circumvent the advice and consent power of the Senate. But presidents can do it, and have done it, and none can gainsay it. And that, it seems to me, is how a constitution ought to work–each branch with its own undisputed powers, and with ample opportunities to mess with the other branches’ business.


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