Doddering Senators Byrd and Warner are reported to be the architects of the agreement that preserved some of the minority’s power to prevent the Senate from fulfilling its duty to advise and consent in judicial nominees. According to the NY Times "They parsed the language of Alexander Hamilton's Federalist Paper No. 66 in an effort to divine what the founding fathers intended when they gave the Senate the power to advise and consent on nominees. After trading telephone calls over the weekend, they drafted three crucial paragraphs.
The agreement contends that the word "advice" in the paper "speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations." It goes on to state, "Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate."
But, if you actually read Federalist Paper 66, you discover the Warner-Byrd agreement's characterization of Hamilton's conclusion is bullshit.
Federalist Paper 66 says, in relevent part: "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."
Hamilton isn't talking about "consultation between the Senate and the president with regard to the use of the president's power to make nominations." Consultation implies that the Senate would be involved in the choice of nominees. But, as Hamilton clearly states: "There will, of course, be no exertion of CHOICE on the part of the Senate."
No, he's talking quite plainly about up or down votes. He identifies only two options for the Senate ". . . they can only ratify or reject the choice of the President" Nowhere does he suggest that the Senate might simply refuse to vote by minority use of a rule. That's not suggested as an option any more than "consultation" is an option.
How dumb do these old cats think we are?
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