Friday, May 13, 2005

The Living Constitution

Conservatives frequently accuse the Court of reading between the lines to find rights that are not explicitly stated, i.e. right to privacy.

But many conservatives are doing exactly this when they preach about the Constitutional requirement that all judicial nominees must get an up or down vote. Andrew McCarthy at NRO is the latest to have discovered this requirement in the Constitution. (No, not that Andrew McCarthy.)

His logic is that if any procedural block on judges or other gov't officials is Constitutional, then it would frustrate the ability of the execute branch and the judicial branch to function. The reasoning is unsound primari;y because it is not supported by the text of the document.

As a refresher, this is what the Constitution says about how judges are confirmed:

Article 2, Section 2, Clause 2

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Constitution also says this:

Article 1, Section 5, Clause 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

That's all folks -- you show me where it says that the Senate is Constitutionally required to vote on judicial nominees. It simply isn't there. I am sure that the founders didn't anticipate this particular situation, but they could very easily has said that the Senate shall confirm or deny, rather than give advice and consent. Indeed, it is a sound argument that by not voting on a particular candidate, that the Senate is fulfilling its advice requirement.

You can read the whole Constitution here. Peruse it and make up your own mind.

[Update - Fellow NROer, Matthew Franck, takes McCarthy argument apart here.]