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SENATORS & THREE-HEADED
FROGS
As is the case with most Americans, I've never
read the Constitution. HI stipulate that this is
bad, that it's wrong to have ignored the document
that guarantees my freedom. It's bad, but I don't
think it's unusuaL However, the ongoing debate in
the Senate over Democratic opposition has led me
to wonder about Republican interpretation of sen
atorial duties. I read Senate Majority Leader Bill
Frist's May 25 floor speech. As he sees it the
Senate's role seems to be a sort of indulgent Uncle
Ernie, offering advice on the President's choices,
but ultimately affirming his decisions.
Frist said, "The President has the constitu
tional obligation to appoint judges. And the
Senate has constitutional responsibility to offer
its advice and consent
For 214 years, the
Senate gave every nom
inee brought to the
floor a fair up or down
vote. Most we accepted,
some we rejected. But
all those nominees got a vote."
The phrase 'to offer its advice and consent" is
notewortiiy, because that's not what the
Constitution says. However, Frist's intei)rotation
of the Constitution, erroneous as it is, has served
to frame the debate on the President's nominees
and the Republicans' assessment of Democratic
"obstructionism." When one reads the actual lan
guage of the Constitution, one discovers a rather
remarkable difference in its language and Frist's.
Article Two, Section Two of the Constitution defines
the President's responsibilities to fill specific gov
ernmental positions. In order to put some limits on
the President's options, the Senate is charged to
review and assess the merit of his choices: '[The
President] shall have Power, by and with the Advice
and Consent of the Senate, to make Treaties, pro
vided 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... '
"Advice and Consent" appears twice in
this passage. However, "offer," Frist's assessment
•' 'he Senate's responsibilities, does rot appear at
aU. Instead, the Constitution says that presiden
tial nominees gain approval 'by and with the
Advice and Consent of the Senate." Frist's change
in the language suggests that the Senate has an
obligation to affirm the President's nomineesr.
Frist's alteration of the Constitution's language
is important To illustrate the difference, I offer
my responsibilities as a parent My children want
to do something that is patently unsafe, unwise,
non-hygienic and marginally legaL There's an
important difference between offering my advice
and consent and allowing them to do it with my
advice and consent
"Offering" suggests that they have the option
to take or reject my advice and consent Allowing *
them to do something only with my advice and
consent means that I'm limiting their behaviors to
those that hopefully, will keep them out of jail,
the hospital the homeless shelter, the Baptist
Church or the Republican Party.
I'll offer no opinion as to why Frist changed
the Constitution's language. I've never been to
med school as has Senator Frist but I'm pretty
certain that med schools don't require classes on
the Constitution. Perhaps the Senator hasn't read
it That would be my hope. Because if he has read
it or if he's dependent on staffers who have, he's
either manipulating the Constitutional process or
he's a dupe of those who are. Worse, the alter
ation of the language has become the terms on
which much of the debate about Presidential nom
inees has taken place.
The most likely objection to my assessment of
Frist's spin on the Senate's Constitutional obliga
tions will be that my argument is just "seman
tics." However, if we're talking about what the
Constitution actually says about the Senate's
responsibilities. I'm not sure what else one has:
the Constitution is a written document, and there
are no illustrations, no perky hand puppets and no
interpretive dancers. The Constitution is nothing
hut language, so the argument that my point is
"just semantics' is right on the money. But it's
the use of language that's in question.
The issue has a correlative in the environmental
field: pollute the ground water, and sooner or later
you wind up with three-headed frogs. This has
been the effect of Frist's rhetorical framing of the
issue, for his misappropriation of the Constitution's
language has seeped down to the lowest levels of
his party to produce mutant logic and analysis.
For instance, in
both writterf and
public statements,
Saxby Chambliss,
Georgia's senior
Senator, has demon
strated an ignorance—
willful or organic—of the Constitution and, hence,
of his responsibilities as a Senator. On his web
site, (http://chambliss.senate.gov/Issues/sin-
gleissue.cfm?IssueID-31) a Chambliss
spokesperson says, 'As a former member of the
Senate Judiciary Committee, Senator Chambliss
remains committed to helping move President
Bush's judicial nominees through the Senate.
Senator Chambliss believes the president must
appoint judicial nominees who will strictly inter
pret the Constitution and not legislate from the
bench. The Constitution clearly states the Senate
should give 'advise [tic] and consent" to the
president's judicial appointments. Failure to give
the President's judicial nominees an up or down
vote, is failure of the Senate to fulfill its
Constitutional responsibility."
There are several points to be made about this
position. First, to remain "committed to helping
move President Bush's judicial nominees through
the Senate" is not part of the job description. 'By
and with the advice and consent of the Senate'
suggests some evaluation, some judgment
Chambliss capitulates that role. Second, Chambliss
dearly has adopted Frist's strategy of fuzzy reading.
In stating that 'the Senate should give '[advice]
and consent' to the president's judicial appoint-
ments," Chambliss has misconstrued what the
Constitution says about the responsibilities of the
Senate. "Should give' is a far cry from "by and with'
the advice and consent The first suggests robber
stamping whatever Bush sends through the doors;
the second calls for consideration and consensus.
Finally, Chambliss creates a non sequitur by
equating the procedural workings of the Senate with
"failure to fulfill its Constitutional responsibility.'
If a vote is delayed or if there are not enough
votes to bring a nominee to a vote, the Senate
has discharged its Constitutional responsibilities.
“By and with the advice and consent" means the
Senate has the option of giving any candidate full
consideration. And such consideration takes place
subject to the rules and procedures of the Senate
itself. If a candidacy has stalled, it suggests that
the Senate's 'advice' is that the candidate be
withdrawn because of demonstrable concerns
about his or her merits. However, the President
has insisted on the passage of each nominee,
"advice and consent* be damned.
The true howler is that Bush, Frist and
Chambliss all favor judges who are 'strict con-
structionists'—that is, judges who, as Senator
Chambliss has noted on his website, 'will strictly
interpret the Constitution and not legislate from
the bench." However, the Republicans' manipula
tion of the Constitution's language suggest that
not even "strict constructionists' will do.
Evidently, Republicans want judges who
haven't even read the damned thing.
Samuel Prestridge
Samuel Prestridge is a bed writer.
The phrase “to offer its advice and
consent” is noteworthy, because
that’s not what the Constitution says.
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