The GOP’s Evolving Definition of “Advice and Consent”

Both The Hill and Politico are reporting on a letter [PDF], signed by all forty-one Republicans in the Senate, sent to President Obama yesterday warning him that they will not hesitate to filibuster his judicial nominees if they are not consulted before he makes his picks:

President Barack Obama should fill vacant spots on the federal bench with former President Bush’s judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would “change the tone in Washington” if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate’s constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the letter warns. “And we will act to preserve this principle and the rights of our colleagues if it is not.”

In other words, Republicans are threatening a filibuster of judges if they’re not happy.

My, how times have changed.  I seem to remember a time, just a few years ago when President Bush was in office, when the Republican understanding of the Constitution’s “advice and consent” clause was that it entitled the President to make nominations of his choosing while the Senate’s role was merely to confirm or reject his nominees.

In fact, that is exactly what they said, repeatedly.  For example, here is Sen. Orrin Hatch saying it:

It seems to me that the only way to make sense of the advice and consent role that our Constitution’s framers envisioned for the Senate is to begin with the assumption that the President’s constitutional power to nominate should be given a fair amount of deference, and that we should defeat nominees only where problems of character or inability to follow the law are evident.

In other words, the question of ideology in judicial confirmations is answered by the American people and the Constitution when the President is constitutionally elected. As Alexander Hamilton recorded for us, the Senate’s task of advice and consent is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people’s will in electing who shall nominate.

To do otherwise, it seems to me, is to risk making the federal courts an extension of this political body. This would threaten one of the cornerstones of this country’s unique success – an independent judiciary.

But it wasn’t just Republican Senators making that argument; it was the standard argument of all the conservatives who were active on the issue of judicial nominations. 

Here is John Eastman testifying [PDF] before the Senate Judiciary Committee making that point explicitly:

[R]ecent claims that the advice and consent clause gives to the Senate a co-equal role in the appointment of federal judges simply are not grounded either in the Constitution’s text or in the history and theory of the appointment’s process.

And here he is making it again:

Article II of the Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court [and such inferior courts as the Congress may from time to time ordain and establish].” As the text of the provision makes explicitly clear, the power to choose nominees — to “nominate” — is vested solely in the President, and the President also has the primary role to “appoint,” albeit with the advice and consent of the Senate. The text of the clause itself thus demonstrates that the role envisioned for the Senate was a much more limited one than is currently being claimed.

Here is the same point being made by the Judicial Confirmation Network:

“It is apparent from the rhetoric included in the ‘Memorandum of Understanding’ that at least 14 Senators – the signers of this compromise – fail to understand the Constitution’s ‘advice and consent’ clause. Article II, Section 2 of the Constitution reads: ‘[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court .’ The Senate’s advice and consent role is part of the ‘appointment’ process, not the ‘nomination’ process, which the Constitution commits solely to the President.”

And here it is once again, this time being made by Steven Calabresi, who just so happens to have been a co-founder of the Federalist Society:

The President was supposed to play a leading role in the selection of judges and that role is defeated by giving a minority of senators a veto over presidential nominees.

Second, giving a minority of Senators a veto over judicial nominees will violate the separation of powers by giving a Senate minority the power to impose a crude litmus test on judicial nominees, thus undermining judicial independence.

I could go on, but I think you get the point.

Isn’t it amazing how, just a few years removed from arguing that the Senate’s sole role in the confirmation process was to either confirm or reject nominees and trying to blow up the Senate with the “nuclear option” in order to get rid of the filibuster, the Republicans in the Senate are now demanding a veto over the President’s nominees and threatening to filibuster if they don’t get their way?