Kowabunga

It has been a full day since the "filibuster deal" has been brokered, and one nominee, Priscilla Owens, has been confirmed. Much has been said and written about this deal, still it is open to debate as to whether it is a "good" deal, or a stinker. The jury, so to speak, is still out.

One point that is consistently made is that this deal has pretty much nuked John McCain's presidential aspirations, not just for 2008, but for good. He and six other Republican Senators have pulled a Neville Chamberlain on us, making this agreement not for the good of the country, but for political expediency, hoping to gain brownie points with the media and other leftist groups in order to advance their political careers.

The agreement stipulates, in part:

Future Nominations Signatories will exercise their responsibilities under the Advice and Consent Clause of the United State Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

But leaves "extraordinary circumstances" left to individual interpretation. The return of the filibuster is on the horizon, and probably closer than one suspects.

Rules Changes In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109h congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

And changing the rules interpretation to end this abuse of power by the Democrats, who insist on playing partisan politics at every turn (and then blame the other side), so as to get an "up or down" vote for nominees is now nothing more than an idle threat, and never to be acted upon by Republicans.

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 the government to consult with members of the Senate, both democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Doesn't the President already receive advice on judicial appointments from the Senate? This is as I always understood it. And there is nothing in the constitution that states the President must accept the advice from the Senate.

From Article II, Section 2 of the Constitution:

...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

When you think about what these 14 Senators have said about advice and consent, they expect that all nominees will come from a list that they shall provide as being acceptable, stripping away part of the President's power. The President is under no obligation to accept nor act upon any such list of recommendations. Second, it says that the President "shall nominate, and by and with the Advice and Consent of the Senate," not "with the Advice and consent of the Senate, he shall nominate.

Time for a little Hamilton, specifically, Federalist No. 66:

It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

Clearly, the intention of the Founders was that the role of the Senate is to debate and vote on nominees, not blockade cloture on a vote, or usurp the power entrusted to the President for their own political gain, which is what this "deal" is attempting to do: shift the power of judicial appointees from the President to the Senate.

Gotta love the Founding Fathers. They knew what they where about. And most of them were not interested in political careers, but serving their country for a time then returning to private life. I wish we had people like them around today.