From: greeny@top.cis.syr.edu (J. S. Greenfield)
Subject: Re: [ACLU] Guardian of Liberty: American Civil Liberties Union
Organization: Syracuse University, CIS Dept.
Date: Mon, 23 Nov 92 00:48:59 EST

In article <1992Nov22.180452.9961@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:

>>>...Simply disagreeing on debatable political
>>>issues does not, in my opinion, fall within the Senate's "advice
>>>and consent" powers.
>
>>Why not?
>
>Such disagreement would not be "advice", which is by definition non-binding.
>"Consent" means a willingness to accept, regardless of agreement.
>Refusing to consent usually goes far beyond just disagreeing. (For example, 
>Senators often vote for bills which contain some provisions they disagree with.
>For their own reasons (usually as part of a compromise), they consent to 
>measures with which they disagree. Refusing to consent would mean, in this 
>case, that no compromise containing the objectionable provision would be
>acceptable.)
>
>>The Constitution pointedly doesn't give the criteria that the Senate should
>>use in choosing whether or not to consent to a choice.
>
>However, the word itself implies reasons stronger than simple disagreement.
>I agree this is, as the Supreme Court would say, a "political question."
>The distinction between "agree" and "consent" is an ambiguous and undefined
>one, and a court of law couldn't draw the line. (If someone is completely
>and totally rigid in his views, and uniformly unwilling to accept 
>compromise, there might be little difference between "agree" and "consent."
>In the case of real politicians, compromise is very acceptable and
>there is a great gulf between "agree" and "consent.")

IMHO, you are reading much into "consent" that is not there.  "Consent"
is quite simply a veto power.  That's all.  Just as the Congress has the
power to pass legislation and the President has the power to veto it (barring
an override), so the President has the power to make appointments and the
Senate has the power to veto those appointments.

I see nothing implicit in the Constitution as to what shall be considered
suitable grounds for wither--though I do think that people have some
expectation that, in either case, a "veto" is the result of some non-trivial
problem with the legislation/appointee.

In practice, it would appear that partisan politicians *do* "consent"
to appointees with whom they "merely disagree."  Bork was the first SC
appointee to be "vetoed" since Fortas resigned in 1969 (?), right?  If so,
then I believe that only two SC appointees have seen a serious challenge in
the last 20 years, and only one failed to get consent.  And if you look at
the votes in the non-challenged cases, I believe you will find very large
majorities--indicating that partisan politicians *have* consented to
SC appointees with whom they have disagreed.  (You certainly don't think
that the Democratic Senators of the last 12 years have been particularly
fond of the Reagan/Bush appointees, do you?)


In any case, are you willing to adopt the same position regarding
Presidential vetoes of legislation?  Do you think that Bush should have
vetoed various bills merely because they included a few provisions regarding
abortion with which he disagreed, for example?  (It seemed as though Bush was
the King of vetoing legislation on the basis of disagreements over very small
features of the legislation.)


-- 
J. S. Greenfield                                         greeny@top.cis.syr.edu
(I like to put 'greeny' here, 
but my d*mn system wants a 
*real* name!)                        "What's the difference between an orange?"
Newsgroups: talk.politics.theory,talk.philosophy.misc,rec.arts.books