Tuesday, July 05, 2005


Professor Zywicki, in this Volokh Conspiracy post, casually remarked that the fillibuster of judicial nominees was an abdication of constitutional duty by the Senate. That enraged the liberals that commented to the post that he didn't know what he was talking about, blah blah, blah.

My response, as you will see in the comments is the following:

As a humble student myself, I have a problem with the following: Advice and consent to me means "recommendation regarding a decision or course of conduct" and "compliance in or approval of what is done or proposed by another." How do any of you legal scholars read those Webster's definitions in such a way as to believe that when the President needs 51% of the Senate to agree to his nominees, that it is ok for 41% of those Senators to fillibuster? Republicans, Democrats, who cares? The fillibuster sounds definitionally like a cheap political trick when applied in this way. And that is why the constitutional argument exists. Just read it! (The constitution, and the numbers both) Again, Professor Zywicki makes a fine numbers argument, as far as my abacus reveals. Consent = 51 Senators. Advice = 51 Senators.

You will note a far deal of sarcasm, and may that reflect my true feelings on this issue. Because the GOP did it to Clinton's executive appointees, doesn't create some precedent that it is right or constitutional. And yes, that is a little remembrance of Prof. McFarland--"Just read it!"