I AGREE WITH SENATOR BYRD! (Well, not really . . . .)

Senator Robert Byrd of West Virginia

The following guest post is submitted by The Hedgehog's former law partner and friend Ralph B. Kostant of Los Angeles:

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As Lowell already has noted in THE HEDGEHOG BLOG, this past Wednesday, MoveOn.org sponsored an old time tent revival, to rally the faithful against the nefarious plot of the Republican Senate Majority to end the Democrats’ filibuster of the President’s judicial nominees. The Republicans are threatening to apply the so-called “Constitutional Option” of terminating debate and actually submitting the judicial nominees to a “Yea” or “Nay” vote. Among the featured speakers at the MoveOn.org conference was Senator Robert Byrd, who intoned:

An ill wind is blowing across this country. That wind sows the seeds of destruction. Our Constitution is under attack. We must speak out. We must kill this dangerous effort to rewrite our precious Constitution.

Well, I quite agree. Now let us exam coolly and objectively who is leading this dangerous effort to rewrite our precious Constitution. According to Senator Byrd, it is the Republican Majority in the Senate, while of the Democrats and MoveOn.org, Senator Byrd declaimed:

Our view, your view, of the Constitution is based on the plain words of the framers who wrote that Constitution.

Well, that’s a simple hypothesis to test. One need merely read the United States Constitution. Article I, Section 3 of the Constitution, as modified by the 17^th Amendment, reads:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.

While no provision of Article I specifies that an action of the Senate requires a majority vote, that is certainly implied by the following provision, regarding the role of the Vice President of the United States in the Senate:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

In other words, if any vote in the Senate results in a tie, and therefore no decision, the Vice President votes to break the tie. Clearly, then, the Constitution contemplates that only a simple majority vote of the Senate is required for the Senate to act. If all 100 Senators are present, a maximum of 51 votes, is needed for the Senate to act. However, since Article I, Section 5 states that majority of either the Senate or the House of Representatives is a quorum for that legislative house to do business, the Senate might validly act on a vote of as few as 26 votes, if only 51 Senators were present. And that is how the Senate, and the House, for that matter, has always done business.

Now the framers of the Constitution knew how to provide for a super majority where they felt one was warranted. Article 3, Section 2, states of the President:

He 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.

So the very provision of the Constitution that requires the “Advice and Consent of the Senate” for an appointment of “Judges of the supreme Court” (and other “Officers of the United States”) states that ratification of treaties requires “the Advice and Consent of the Senate …provided two thirds of the Senators present concur.” Once again the implication is clear: “Advice and Consent of the Senate” means a simple majority vote of a quorum of Senators, except in the case of a treaty, where a two thirds vote of the Senators present is required.

Having established “the plain words of the framers who wrote that Constitution,” in the inspiring and immortal words of Senator Byrd, let us see who is calling for a departure from plain meaning. Here is California’s beloved Democratic Senator Barbara Boxer, speaking on the subject of the vote of the Senate required for “Advice and Consent” on a judicial nomination:

Why would we give lifetime appointments to people who earn up to $200,000 a year, with absolutely a great retirement system, and all the things all Americans wish for, with absolutely no check and balance except that one confirmation vote. So we're saying we think you ought to get nine votes over the 51 required. That isn't too much to ask for such a super important position. There ought to be a super vote. Don't you think so? It's the only check and balance on these people. They're in for life. They don't stand for election like we do, which is scary.

Now, I do not wish to be catty regarding Senator Boxer. I will leave that to Senator Feinstein. So I won’t comment on her admirable eloquence, as illustrated by phrases such as “a super important position.”

No, my point is simply this—Senator Boxer favors ignoring “the plain words” of the Constitution and implementing, without a constitutional amendment, a vote of 60 Senators in order to confirm a judicial nomination.

Senator Byrd, help us to repel this odious attack on our precious Constitution!

AND WHILE WE ARE ON THE SUBJECT…

Isn’t this debate over the “Constitutional Option” really just a microcosmic illustration of the entire fight to appoint judicial nominees who are strict constructionists of the Constitution? For decades, liberal jurists have viewed the United States Constitution and the Constitutions of the several States as documents of astonishing elasticity, in which, wonder of wonders, a liberal jurist can find whatever one wants! Any political objective on the Left’s agenda that fails to merit a majority vote in a legislature nevertheless may be enshrined into law by a liberal court, based on newly discovered Constitutional authority.

Has the State Legislature passed a law banning gay marriage? Never fear, it is unconstitutional, even if the State Constitution is completely silent on the subject. Have the people of the State voted in a referendum to ban gay marriage? Shame on them—but no matter, their action was unconstitutional! Are the laws of a State silent on authorizing gay marriage? No matter, the State Constitution will be found to require it!

Of course, gay marriage is just one of many examples one could cite for this trend. But if a Constitution can mean anything, it really means nothing. Taken to the extreme displayed by Senator Boxer, and frankly advocated by most liberal thinkers, the U.S. Constitution and State Constitutions are rendered into nullities, becoming merely the cited justification for enacting a judge’s personal opinions into law. The guaranty in Article IV, Section 4 of the United States Constitution, that each State shall have a republican form of government, gives way to a dictatorship of an “enlightened” [read, “liberal”] judicial elite.

Those are the stakes of the battle now looming in the Senate.

Ralph B. Kostant