Advice and Consent

Here's something that just occurred to me about what the republicans believe to be the duty of the Senate to give an "up and down vote" the president's judicial nominees. 

Conservatives often claim some clairvoyance about the founding fathers; that the people who wrote the Constitution didn't intend for a minority of Senators to hold up passage of a nominee.  Like Focus on the Family:

But conservative activists, joined by some of the nation's top constitutional law experts, say it's the Democrats who have wrongly seized hold of power — and the Founding Fathers never intended for a handful of senators to be able to hold nominees hostage.

Or Edward Daley, writing on Renew America:

Clearly our founding fathers did not intend to impose upon the President the burden of garnering more votes than those needed for a simple majority consensus in the Senate before his various nominees could be confirmed to their respective offices.

Now, I'm not a republican, so I'm not blessed with their gift of divining without any evidence what a bunch of guys who lived a long time ago really intended.  So I can't tell you what the founding fathers would have thought about a minority of Senators holding up a judicial nominee. 

I can tell you, though, that the founding fathers wouldn't have envisioned the sort of situation that is a prerequisite for the current stand off.  Because the founding fathers didn't like political parties.  It surely would never have occurred to George Washington that a republican president would be trying to confirm extremist nominees by party line votes, given that Washington famously said

They [political parties] serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels, and modified by mutual interests.

and that

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.

I'm saying this because, while I don't really care all that much what the founder fathers thought, conservatives do seem to care about what they thought.   When they argue that the Senate Democrats are going against the intention of the framers of the Constitution, it might behoove them to consider all of what the framers thought, instead of just what suits their agenda. 

Not only did the founders not really envision political parties, but they didn't expect a president of one party to exact the kind of discipline that current presidents exact from their rank and file.  As Alexander Hamilton said in Federalist 76:

Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable.

The President hasn't imposed his will upon the "whole body" but he's certainly influenced more than "some individuals."  We can see how far Hamilton's assumption that Senators be "independent and public-spirited men" is from the modern republican machine. 

Of course, republican claims about what the framers would have intended are merely rhetorical and essentially unserious at best; but they're also misleading, which isn't mentioned often enough. 

-- Michael

Comments

[sam]

Not to mention that the whole point of separation of powers was that the congress was supposed to be a check on the president's power (and vice versa. and the courts too). When one branch of government essentially views itself as a rubber stamp for another, we've got a big problem.

[randomliberal]

You have to wonder what the founders were thinking when they didn't make provisions for political parties. Yeah, they didn't want them to happen, but Great Britain was just beginning to dive back into partisan politics because of the years between the Seven Years War and the American Revolution. If I remember correctly what little I've read about British politics, those who did not support colonial rights split from the Whig party to reform the Tory party. Political parties had been part of British government off and on for about a century before that. While this may have been why the founders didn't want parties in the United States, it should have been clear to them that parties and factions would form.

Just something I've wondered about recently.

[Michael]

Crikey, Michael, what do you want from the poor Repugnacons? You know they never learned how to read a text critically: they don't teach that in GOP 101, just "parrot whatever Rush tells you to say."