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Andy, Et Al
[Mark R. Levin  05/14 10:59 AM]

I am among a few who aren't great fans of John Marshall, so I won't quote him here. I know some of my friends view Marbury as a decision limited to the case before the Court, but its main critics at the time, including Thomas Jefferson, saw it as much more, as do I. Lincoln tried to limit its impact in his response to Dred Scott (including in his first inauguration speech), which is certainly understandable as a political matter, but that's an argument for another day.

But, respectfully, the argument that the Senate making judicial confirmation more difficult is "no injury to the president's prerogatives" doesn't work for me. Of course, the president's ability to nominate is unaffected, but given that the purpose of the nomination process is to achieve confirmation, the filibuster clearly injures the president's appointment power.

Moreover, advice and consent is an authority granted to the Senate. As I've contended before, the filibuster rule, when used against judicial nominees, denies the full Senate its advice and consent role (unlike blue-slipping or a committee voting down a nominee, where the full Senate can call up the nominee for a vote in any event). The rule, as used today by the Senate minority, is inherently unconstitutional as it blocks the full Senate from exercising its advice and consent role. And so, a rule change, as contemplated, fixes it. (And, yes, I have a similar problem with non-judicial nominees.)

Clearly the Senate is authorized to set its own rules, but there's a difference between setting internal rules as apply to its legislative function, for which filibusters have been used up until now (albeit even limited in these circumstances as Andy points out), and setting rules that limit the Executive's role in appointing officials to the third branch of government.

And perhaps I'm being too critical, but there is no joint power to appoint judges. The Senate's role was intended to be, and up until now has largely been, deferential (if not passive) to the president's nomination power. As recently as 40 years ago, if hearings were held for nominees to the Supreme Court, they were mere formalities. For most of our history, confirmation occurred without any hearings at all. Obviously the Senate is not required to confirm all judicial nominees. And from our beginning, it rejected several of Washington's Supreme Court nominees. Still, there is no joint power. The Senate can nullify.