OK, last ditch and very controversial

I have thought about this idea for years, mainly back when we had a GOP controlled Senate and a Democratic House. The constitution originally gave the Senate the power to "advise and consent" and confirm judicial nominees as well as confirm cabinet appointments. But the 14th amendment to the document gives all citizens "equal protection" under the law.

To have "equal protection" the "advise and consent" and power to confirm should be as close to equal as can be. This is not the case, California has around 36 million people and has 2 elected official to "advise and consent" and has two votes toward confirming or not confirming whereas Wyoming with around 500,000 people also has two elected officials for the same. If there is to be equal protection then the interpretation of the laws have to reflect the consent of the people through their elected representatives as equally as can be done.

This of course goes to an age old debate in this country of Democracy or Democratic Republic and if we are a nation of states or a nation of people. However the 14th amendment is very clear and it does move rights from being given to the states to the people. Of course we would not be able to vote as a nation on the confirmation of judges so the most equal way we have for doing such would be for the House of Representatives to confirm judges and cabinet heads.

A true last ditch effort to stop Alito and change the way things are done would be for someone today to file a lawsuit in California claiming that their right to equal protection under the law is being violated by the current process and ask the judge to grant an injunction prevented the US Senate from voting on Alito and other federal judges confirmations and set a date for a hearing on the violation of civil rights.

This is of course a huge legal and constitutional proposal and a few paragraphs does not lay out the entire argument. I only wanted to post the general idea and arguments without having to write a complete legal document.

edited to correct 13th to 14th

"A true last ditch effort to stop Alito and change the way things are done would be for someone today to file a lawsuit in California claiming that their right to equal protection under the law is being violated by the current process and ask the judge to grant an injunction prevented the US Senate from voting on Alito and other federal judges confirmations and set a date for a hearing on the violation of civil rights."

CAN SOMEONE CALL THEIR ACLU AND ASK? (il aclu is blabla, so i won't call my "chapter")

OR PLANNED PARENTHOOD? COULDN'T THEY PUT UP A LAWYER AND DO THIS?

wouldn't this apply, in theory, to *anything* that the Senate does (not just judicial confirmations)? You seem to be arguing that the makeup of the Senate is unconstitutional due to the population disparities between the states. I think that this argument would have a good chance of working (i.e. that the 2 senators per state system would be struck down in court) if it were not for the fact that the Constitution specifically states that there will be 2 senators per state.

Having two senators per state does not give the same amount of underrepresentation in making laws and other actions of the Congress that the confirmation process does as other actions require both the House and Senate. Also the laws passed by the Congress as a whole are subject to interpretation by the courts and enforcement of the executive. There are of course valid reasons for the "over-representation" of smaller states, the most obvious one is where federal dollars are spent. My argument is on the confirmation of federal judges who interpret the laws and cabinet level officials who enforce the laws.





edit for spelling

I agree that the Senate is undemocratic and have always dreamed of "redistricting" the Senate to consist of 100 interstate "super-districts" of roughly 3 million people a district. But if the ninth circuit ruled to suspend the Senate, a horde of freepers would descend on San Francisco with torches. In fact, it just might start a shooting war. A very short one, mind you. And one that would end up with commie homosexual leftist bastards being drug from their homes and shot in the street in front of their wives and children, Wife and children? well, commie CLOSET homosexual leftist bastard then.

Either way, I don't think your proposal works.

are confirmed.

If a judge were to grant an injunction and everything were settled for the plaintiff the Congress would then have to rectify the situation to the satisfaction of the court.

While the Equal Protection Clause has been applied in connection with redistricting cases involving the House of Representatives, by definition the Senate is different. A court would almost certainly toss any complaint for failing to state a legitimate claim under the law.

onenote

As you stated the EPC has been used to protect the "value" of ones vote in comparison to others votes in the election of those who make the laws, this is a much similar argument. For the laws to provide equal protection the confirmation of those who interpret the laws should be decided by the most equal manner possible. No change in the structure of the Senate is needed to do this. The two ways it could be rectified would be the confirmation process be moved to the House or to be executed by both the House and the Senate.

The three branches are by the constitution to be equal in their powers, if the EPC can be used to ensure one's vote has equal standing with others votes in the way congressional districts are layed out then it can be used to ensure their votes for the elected officials who consent to the judges that interpret those laws are as equal as possible.

THe reason the EPC works in Congressional redistricting cases is that the Fourteenth Amendment to the Constitution (which also is the source of the EPC) explicitly states that Representatives shall be apportioned among the several States according to their respective numbers...." It doesn't talk about Senators because at the time, Senators weren't elected by popular vote at all, they were chosen by state legislatures. Popular election of Senators only came into being with the adoption of the 17th Amendment in 1913, more than 40 years after the Fourteenth. Given this chronology, there is no way that any court would allow an EPC case to be brought based on the fact that the Senators from some states represent more voters than others.

Also, its not exactly right to say the three branches are to be equal in their powers. They each have different powers and even within the legislative branch, the Senate and House have different powers (with the power to confirm Justices, among other officials, given to the Senate).

onenote

Would only challenge what body of elected officials "advise and consent" on federal judges and cabinet officials. I'm not saying this isn't a stretch and I'm not rushing out to file suit. And it would defiantly be a challenge to the Democracy/Democratic Republic argument.

The over representation of smaller states by virtue of the structure of the Senate would not be challenged only the procedure of the Senate being the sole body to give "consent" to judicial and cabinet posts. The powers given the Senate is what the challenge would consist of. The rectifying act would have to be an amendment to the constitution moving the "advise and consent" on judicial and cabinet appointments from the Senate to the House or to the Congress as a whole. As you stated it was 40 some years after equal protection was granted that popular election of Senators came about. That in comparison is a bit more simpler a concept for the courts, people have more protection from the law if they elect the member of the upper chamber that writes the laws.

The difficulty of the current situation is the government tries to provide equality in weight of in individual's vote in regards toward who writes the laws but it does not provide the same attempt at providing equal weight in one's vote for who "consents" one those who will interpret the laws and provide for remedy's under the laws. As I said this would not be a challenge of the structure of the Senate, but a call for advice and consent in a manner that both continues the concept of a country made up of the "several states" yet providing for equal protection of the law for the people through who provides the advise and consent.

I think a court could get past the chronology issue you mentioned the bigger problem would be the courts would be very hesitant to get involved in something that directly relates to them, and would probably defer to the Congress to pass an amendment on their own. However I do think that the 14th amendment is enforceable in this situation and federal court is where the decision should be made.

So, its hard to build a case that the means for confirming judicial (and other appointments) left unchanged even when the Constitution was amended to require popular election of Senators would be contrary to the Constitution.

And I also agree that the courts would be enormously reluctant to upset the way that judicial appointments have been handled since the dawn of the nation.

onenote

And that way is not a way I think would have any credence.

First off, the 14th Amendment does not apply to the federal government, it applies to the state governments. Right there you have a concept that is really not applicable to the problem you're trying to solve.

Secondly, the EPC is concerned with the application of laws. Justices are not charged with that action....they interpret them. It's the exectuive branches that are concerned with application.

But if federal judges determine the equality in the application of state laws, for there to be equal protection in the application of the laws wouldn't there also have to be protection in the adjudication of the applications of the law? At least to a point that is reasonable, such as the body of Congress that is elected with more equality in the weight of individual's votes providing the "consent" to those who interpret the laws?

But if federal judges determine the equality in the application of state laws, for there to be equal protection in the application of the laws wouldn't there also have to be protection in the adjudication of the applications of the law?

The thrust of what you're offering is the application of the EPC to the federal judiciary in terms of their decision making process, where it simply doesn't apply.

I see what you're going for, but ultimately I think it would be determined that since the judicial branch neither legislates nor executes/enforces the laws of the land, that it would be difficult to apply the same standard the 14th Amendment applies to those entities that do. There aren't many clauses in the 14th Amendment that could be found to apply to the judiciary.

The Constitution itself is what sets the standards for Senatorial representation, both the number and method of election. Unfortunately, that also means that it can't be "unconstitutional" for the states to have the same number of Senators regardless of population. Equal protection and the one person, one vote principle have never been applied to the US Senate for that very reason.

Yes, I know it conflicts with another provision of the Constitution. In the law, however, the specific provision (ie, Article I re the election of Senators) controls over the general provision (ie, the 14th's guarantee of equal protection under the law).

Such a lawsuit would be dismissed summarily. Sorry.

The intention would be to move the advise and consent power from the Senate to the House or the Congress as a whole.

"He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Article II, Section 2


It is the very text of the Constitution that you want changed, not merely a power of the Senate. This could only be changed with an amendment, not simply a lawsuit.

I'm not talking about something that could be done overnight or even something I am rushing out to do. And yes the rectifying action would have to be an amendment, as discussed in other parts of the thread, however I can't see the Congress passing such an amendment and thought this would be a good legal discussion on a timely constutional issue. Now, of course when you feel there is a violation and neither of the other branches will help the courts are your only option.

Amend the Constitution to reflect that desire.

One of the legal questions that might come up would be whether placing the advise and consent role in the hands of the entire Congress effectively grants the power of appointment to the Congress, and takes it away from the President. Constitutionally, the Congress has no appointment power, and though I can't say for certain, I think the intent of the Framer's placing that advise and consent role in the hands of one house of Congress was an effort to recognize that distinction.

It was to keep the appointment process in the hands of the upper class, ie the President and the Senate.

While not disagreeing with your conclusion.

There certainly is a state-centric bias to the idea, at least in the context of the founding.

My guess is that it had something to do with separation of powers in the sense that, just as power is diffused among the different branches of government, it is also diffused at it's acknowdleged source...the people. They certainly were not fans of direct democracies.