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Bush Administration

See ’em at Bob Geiger’s place.

The Every Day Cartoon is, of course, on Fox News Network —

Rick Perlstein provides not-so-funny testimony on Bill O. and the hating of America.

And in the You Can’t Make This Shit Up department, see the Right Blogosphere. The wingnuts think Sen. Chuck Schumer is attempting a coup d’état . WTF?, you say? One of the Power Tools explains,

The Democrats’ unconstitutional usurpation of power continues: Chuck Schumer, possibly the wackiest of all Capitol Hill Democrats, announces a change in the Constitution:

    New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”
    “We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

I guess “dangerously out of balance” means 5-4. What Schumer really means, of course, is that he wants to hold the fort for a year and a half so that a Democratic President can be elected, and the Court can be “dangerously out of balance,” i.e., 5-4 in the other direction.

The Right, of course, has never even thought about placing people to their own ideological liking on the Court.

However, what puzzles me is the bit about “changing the Constitution.” Article II, Section 2, paragraph 2, clearly says,

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.

In Rightie World, the only “advice and consent” the Senate is allowed is “Yes sir, Mr. President!” Unless, of course, Republicans hold the majority in the Senate and the President is a Democrat.

This confusion on constitutional theory might have come about from a recent conference call held by the White House for rightie bloggers, in which the bloggers were initiated into the Revealed Wisdom of Executive Privilege. Captain Ed wrote,

The power to hire and fire federal prosecutors belongs exclusively to the executive branch. Congress has no particular oversight in these matters, and so the executive privilege claim is very compelling in this instance.

Yes, the President has the authority to hire and fire federal prosecutors, but the Constitution (see above) explicitly gives the Senate oversight regarding “all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” U.S. attorneys have been included in this classification since Congress passed the Judiciary Act of 1789. However, according to the DoJ’s own web site,

Initially, United States Attorneys were not supervised by the Attorney General (1 Op.Att’y Gen. 608) but Congress, in the Act of August 2, 1861, (Ch. 37, 12 Stat. 185) charged the Attorney General with the “general superintendence and direction duties …” While the precise nature of the superintendence and direction was not defined, the Department of Justice Act of June 22, 1870 (Ch. 150, 16 Stat. 164) and the Act of June 30, 1906 (Ch. 39, 35, 34 Stat. 816) clearly established the power of the Attorney General to supervise criminal and civil proceedings in any district.

Wouldn’t it be fun if Congress took back its supervision of the U.S. attorneys? Anyway, further down the DoJ web site says,

United States Attorneys are appointed by the President with the advice and consent of the Senate for a four-year term. See 28 U.S.C. Sec. 541.

It’s possible, of course, that when the White House Captain Ed and the Power Tools and other righties talk about “the Constitution,” they are not talking about the Constitution of the United States.

See also JeffFecke at Shakesville and Down With Tyranny.

Update:
See also Dr. Steven Taylor, one of the few honest small-government conservatives left in America:

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14 Comments

11 Comments

  1. Marshall  •  Jul 28, 2007 @10:04 am

    Two words for the power tools : Abe Fortas.

    (For those with historical amnesia, the Senate republicans blocked LBJ’s last Supreme Court nomination (to be Chief Justice) on the hope that a Republican would win the Presidency. Since they were in the minority at the time, this was done by filibuster, with the aid of the Dixiecrats. It worked; we got the Burger court, courtesy of Nixon, the first step to our current dictatorship-friendly Supreme Court.)

  2. jpe  •  Jul 28, 2007 @11:15 am

    Re: the USAs; it isn’t clear that the Congress could take back the authority over them. The con law on point is muddy, but AFAIK, the question is two-fold: a) is the position one that is quasi-legislative or executive? If the latter, the President’s power to appoint entails an inviolable power to remove. (can’t remember the case this is from) In Olson, though, Rehnquist suggests strongly in dicta that establishing a for-cause firing requirement isn’t so high a burden on the President’s authority to ensure that the laws are executed faithfully.

    As with much Sep of Powers law, unclear stuff. But certainly Congress has a decent argument, and that’s all the hook they need to go poking around the DoJ.

  3. Greg  •  Jul 28, 2007 @11:25 am

    Maha wrote:

    “The Right, of course, has never even
    thought about placing people to their own
    ideological liking on the Court.”

    Of course conservatives want people of own
    liking on the court. The thing that is
    different here is how the nominees of the
    President get treated by the respective
    parties. Republicans did not filibuster,
    nor treat Clinton’s nominees with
    disrespect, as what the Democrats did with
    Bork and Thomas.

    With respect to what Schumer said:
    “We should reverse the presumption of
    confirmation,” Schumer told the American
    Constitution Society convention in
    Washington.

    Now Schumer is advocating a Senate veto
    over the President’s nominations. This
    is an expansion upon the tactics
    mentioned above. What the Republicans
    have done in the past is to judge the
    qualifications of the nominees only.
    Schumer now wants to include ideology.
    Even though Ginsberg and Breyer were not
    to our ideological liking, they were not
    filibustered nor vetoed by the Republicans
    in the Senate. Nor were they treated
    with disrespect for nothing more than
    having political differences.

    This appears to be a power grab. Ironic
    that the Democrats are accusing the
    President of this while attempting it
    themselves.

  4. moonbat  •  Jul 28, 2007 @12:49 pm

    Republicans did not filibuster, nor treat Clinton’s nominees with
    disrespect, as what the Democrats did with Bork and Thomas.

    IIRC, the Republicans didn’t need to. They kept most of Clinton’s nominees bottled up in committee. I don’t have the numbers before me, but there were a lot of judicial positions that remained open for a long time because of this.

    What the Republicans have done in the past is to judge the
    qualifications of the nominees only. Schumer now wants to include ideology…

    Do you really believe this? The Republicans, non-ideological? You have got to be kidding. This is pure propaganda, the Republicans as innocent lambs.

    As I see it, both sides want their own on the Supreme Court, and both sides to varying degrees have done what they could to game the process to achieve this end. I don’t see anyting wrong with Schumer advocating what the Constitution says the Senate should be doing all along.

  5. maha  •  Jul 28, 2007 @1:03 pm

    Wow, talk about historical revisionism.

    Republicans did not filibuster,
    nor treat Clinton’s nominees with
    disrespect, as what the Democrats did with
    Bork and Thomas.

    Excuse me while I roll about on the floor and howl for a moment. Thanks much.

    OK, I feel better now. The thing is, son, that what the Republicans did to many of President Clinton’s nominees was worse. They didn’t release nominees out of committee. That means they didn’t have to filibuster to block the nominees, because the names weren’t submitted to the Senate for debate.

    This is from the Christian Science Monitor, May 12, 2003:

    But until recently, the use of the filibuster to block judicial nominations has been rare: It was used only once by Republicans, to scuttle President Johnson’s 1968 nomination of Abe Fortas as chief justice. Now, Democrats are using filibusters to block Bush nominees Miguel Estrada and Priscilla Owen to federal appellate courts. [That’s two nominees, notice. — maha] …

    …Both sides blame the other for making such decisions partisan, and there’s plenty of evidence to support either side. In a Rose Garden speech on Friday, President Bush charged that the judicial confirmation process is “broken,” noting that eight of his first 11 nominees to the Federal Appeals Court waited more than a year for a vote on the Senate floor; three more are now into year three.

    Democrats counter that they have, in fact, approved 124 of the president’s nominees, while blocking only two. That’s faster than Republicans moved President Clinton’s nominees when they controlled the Senate. Moreover, some 60 Clinton nominees never had a hearing before the Senate Judiciary Committee – as effective a block to confirmation as a filibuster, they add.

    “When the White House wants to show some degree of moderation, the system works well,” says Sen. Charles Schumer (D) of New York, a member of the Senate Judiciary Committee.

    The Senate Rules Committee is expected to take up the proposed rule change as early as this week. It lowers the number of votes required to end debate from 60 to a simple majority by increments. Spokesmen for Senator Frist say he is hoping his proposal will set off a “high level debate” in the Senate on how to solve the filibuster problem.

    That’s when the real fight could begin. “If there’s anything that senators consider to be at the very core of their personal power,” says Ross Baker, a political scientist at Rutgers University, “it’s judicial nominations.”

    (Of course, the talking point the Right will crank out will be about the filibuster, which at least goes on in the open Senate, rather than the practice of GOP committee chairs just sitting on Clinton nominations and not releasing them to the Senate at all. And the amazing thing is that Kool-Aiders like Greg here probably are incapable of seeing the essential dishonesty of their own arguments.)

    Now Schumer is advocating a Senate veto
    over the President’s nominations.

    That’s the Senate’s right. It has always been the Senate’s right. It’s in the Constitution, as I explained in the post. The President must receive the consent of the Senate for certain nominations to be confirmed, and the consent of the Senate doesn’t mean squat if it doesn’t have the authority to say no now and then. The Senate should not function as a rubber stamp, or else the separation of powers is meaningless.

  6. Dave  •  Jul 28, 2007 @1:26 pm

    Pardon me for posting off-topic. I just spotted a news story on HuffPo and I don’t see anyone discussing it.

    Seems that Bush said, in his Saturday radio address, that the FISA law needs to be overhauled because it is woefully out of date. He’s saying that it was passed in the days before cell phones and the Internet…

    Wasn’t this the exact same argument he made for passage of the Patriot Act, which was going to fix all that for him? Then didn’t he say, after passage of the Patriot Act, that all this was in fact fixed?

    I seem to remember another round of “before cell phones and the Internet” when he was justifying the NSA spying program.

    Does he think we have no memory? Or does he figure that rerun arguments used to extend the Iraq war are working so well, that he might as well use the same tactic here?

    Jeeze.

  7. Greg  •  Jul 28, 2007 @2:25 pm

    Maha wrote:

    “And the amazing thing is that Kool-Aiders like Greg here probably are incapable of seeing the essential dishonesty of their own arguments.)”

    What dishonesty are you referring to in my argument? Schumer wants to include ideology in confirmation process. This was not
    done in Breyer or Ginsberg confirmations.

    From Schumer himself:
    Schumer said there were four lessons to
    be learned from Alito and Roberts:
    Confirmation hearings are meaningless, a
    nominee’s record should be weighed more
    heavily than rhetoric, “ideology matters”
    and “take the president at his word.”

    Perhaps I didn’t make myself clear, but what I was referring to specifically was how Breyer and Ginsberg were treated and
    contrasting this with how Bork and Thomas were treated.

    As for how the Republicans behaved, Clinton was given his nominations, something that Schumer now does not want to give to Bush. On ideological grounds, which is what I suspect that the case was with Bork and Thomas.

    Evidently he wants to do the nominations himself. But he is not president. To my recollection, the Republicans did not make
    a comparative statement to Schumer’s while they were in the
    majority while Clinton was President.

    With respect to the filibuster, neither Breyer nor Ginsberg were filibustered even though their views were not to the liking
    of conservatives. The Republicans were a minority then, with a
    Democrat President. They weren’t “Borked” and they actually received a fair number of Republican votes.

  8. maha  •  Jul 28, 2007 @2:53 pm

    What dishonesty are you referring to in my argument? Schumer wants to include ideology in confirmation process. This was not
    done in Breyer or Ginsberg confirmations.

    I don’t have time to argue with you, so you’ll be banned after this (see Comment Rules). I will answer briefly. Breyer and Ginsberg were both nominated while Democrats controlled Congress, so the Republican members may have felt there wasn’t much they could do to stop the nominations. Breyer and Ginsberg were considered to be moderates at the time. Republicans accepted the nominations because they had feared Clinton would have nominated someone more liberal.

    And, of course, Bush DID get his nominees confirmed, and now it turns out both of ’em lied out of their asses during the confirmation process (even Arlen Spector acknowledges this) about how they would handle their jobs. And that is why Schumer is saying he’s not going to trust any more of Bush’s nominees, nor should he. The Senate has a responsibility to be sure responsible and HONEST people are confirmed to SCOTUS. This is a duty they shirked when they confirmed Roberts and Alito.

    The larger point, however, is that the Senate absolutely does have the Constitutional authority to refuse to confirm a presidential appointment for all offices covered by Article II, section 2, paragraph 2, quoted in the post above, for any reason whatsoever. There is nothing the least bit subversive about this.

  9. myiq2xu  •  Jul 28, 2007 @8:39 pm

    Weeee -doggies!

    FDL is “controversial.”

    Move-on are “extremists.”

    Daily Kos are “not respectable,” “hatemongers,” and the “worst example of hatred.”

    Is this an LSD flashback or have I truly fallen thru the looking glass?

    Wait – I never did LSD!

  10. Swami  •  Jul 28, 2007 @9:58 pm

    The left wing mad dog blogosphere? Fox made it sound like we were the Aryan Nation. It’s good to see that they’re taking notice because behind the villification of the dumb and foul mouthed left blogosphere is the implict acknowledgement that they’ve meet their match. Too many literate and articulate lefties who are paying attention,perhaps?

  11. Doug Hughes  •  Jul 29, 2007 @12:20 pm

    And not a word about the sweetness and light of Ann Coulter from Fox. She’s not a blogger, so the right-wing filth she spouts is – OK. If ever I needed confirmation of the influence of the blogosphere, Bill O gave it.

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