Senate agreement to stop nuclear option has already been violated by *.

[Wordie]

It appears that Bush's nomination of Alito has already violated the terms of the (Gang of 14) agreement to stop the nuclear option:

Article II, Section 2, of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, ... shall appoint Judges..."<79> and that the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations.

The agreement to stave off the "nuclear option" reached by 14 moderate Senators supports a strong interpretation of Advice and Consent from the Constitution. (http://legalaffairs.org/howappealing/USSenateJudgesDeal.pdf)

We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

http://en.wikipedia.org/wiki/Nuclear_option_(filibuster)

Yet Bush did not consult with anyone in nominating Alito... Of course, the statement said "encourage" and not "require." But still, the intent is clear.

What does this mean? Is the Gang of 14 agreement technically dead anyway, because Bush didn't consult with the Senate before making his appointment of Alito? Would this convince any Dem Senator to go along with the filibuster? Is it a good argument to use with his/her constituents, to explain a vote against Alito and for the filibuster?

[jmowreader]

1. What he did with Alito is actually how it's supposed to go

The "advising and consenting" part is going on now.

Unfortunately, Bush thinks "advise and consent" means "rubber stamp."

[Wordie]

3. The gang of 14 senate agreement "encouraged" * to consult BEFORE

nominating, and although I realize that's neither traditional nor required in the Constitution, that does appear to be what the agreement to avoid the nuclear option was based upon.

And I completely agree with your 'rubber stamp" comment - Frist is doing his best to force that.

[Coexist]

8. Most responsible Presidents would

so that their choice would not have to go through a browbeating.

It makes sense, yes?!

Clinton submitted a list and the Republican leadership let him know which wouldn't get through.

[Igel]

2. The post presupposes that the

legislative's interpretation of the Constitution is binding on the executive. We'd hardly argue the other way in principle, that the executive's interpretation is binding on the legislative, but it would be as valid an argument.

In any event, observe the grammar: 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..."

On the face of it, the advice-and-consent bit applies to the appointing. Not to the nomination.

[Wordie]

4. Well, if the tacit agreement to consult before nominating wasn't followed

whether or not it was enforceable, is there anything binding Senators to abide by the pledge? I am focusing far more on the latter part of my post and the nuclear option here. Is the agreement regarding the nuclear option really even still relevant, as it appears to be based on an expectation that Bush would consult before sending a nominee to the Senate?

[Igel]

5. Nope, not as far as I know.

It's a purely private matter, albeit one widely publicized and fraught with politics.

[Wordie]

6. I guess I am trying to anticipate a response if some Dem members of the

Gang of 14 vote for a filibuster. In such a situation, rather than allowing anyone to say that they were the ones who broke the agreement, it should be easy to make the case that it was really Bush.

[mom cat]

7. K&R..I don't know how I missed this one! ... Great Wordie!

[Idioteque]

9. Didn't Reid specifically ask Bush *not* to nominate Alito? n/t