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Wednesday, April 05, 2017

The Framers Didn't Think "Advise and Consent" re Confirmations Needed a Supermajority

I'm reading a book about the American presidents and how they rate when judged by constitutional standards. It wasn't long before I needed to refresh my recollection of Article II of the U.S. Constitution, which establishes the executive branch. In reviewing it, I noticed some pretty solid evidence that the Framers of that Constitution would not have thought a super-majority of the Senate -- such as a 60-vote threshold -- necessary for confirmation of presidential nominations.

Section 2 of Article II  is one long sentence. The first clause (or whatever the appropriate grammatical term), up to the first semicolon, gives the president "the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . ." Note the "two thirds." That's a supermajority. Any time more than a majority is required in a vote, you have a supermajority.

Next comes the power to appoint various officers: "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 . . . ." Same "Advice and Consent" language -- but no two thirds threshold. No supermajority. Evidently the Framers thought Treaties so important that the super-majority safeguard was necessary, but weren't as concerned about presidential appointments.

So the Democrats were well within the constitutional comfort zone when they amended Senate rules to drop the 60-vote requirement for cutting off debate on almost all presidential nominations. (The first version of that rule, by the way, dates from 1917 -- not from the Framers' era. For some background on Senate debate, filibusters, and the cloture rule, follow this link.) And the Republicans will, likewise, be doing no violence to the constitutional framework if (or, per most expectations, when) they eliminate the last vestige of that requirement in order to allow confirmation of Judge Gorsuch to the U.S. Supreme Court.