Constitutional interpretation for me, but not for thee

Nat Hentoff has a reputation as a Constitution mensch and as someone who writes for both the Village Voice and the Washington Times, his opinions carry a certain apolitical credibility. One of the best dissertations on First Amendment rights can be found in Hentoff’s “Free Speech for Me – But Not for Thee: How the American Left and Right Relentlessly Censor Each Other.”

In today’s Washington Times, Hentoff weighs in on the Constitutionality of the Senate filibuster of judicial nomimees. But Hentoff goes much further, saying that the idea of a judiciary committee is an unconstitutional barrier to the intention of the Founding Fathers, who stated that candidates need to be considered by the full Senate.

There have been times when the Senate Judiciary Committee itself — when either Republicans or Democrats are in the majority — has refused to even hold hearings, or to send nominees to the floor, for votes by the entire Senate. Article II, Section II of the Constitution says clearly that the president nominates "by and with the Advice and Consent of the Senate." Not the advice and consent of the Senate Judiciary Committee alone.

And in No. 76 of the Federalist Papers — a collection often cited by the Supreme Court as a reliable road map to the Constitution — Alexander Hamilton says plainly that the "advice and consent" responsibility is to be exercised by "an entire branch of the legislature" — not just by a single committee. Hamilton also warned about "the spirit of cabal and intrigue" that can be attendant on getting nominations confirmed.

The obstruction by the Senate Democrats on judicial nominees has exasperated me. Now I take comfort in the words of George Will who said on “This Week” yesterday that: “There’s nothing in this judicial crisis that an election couldn’t fix” – a clear indication that Will believes the judicial fight will play a part in tipping the Senate further to the GOP in 2004.