Said to President Bush this week that the...


October 26, 1991|By THEO LIPPMAN JR.

SEN. PAUL SIMON said to President Bush this week that the people "who wrote the Constitution" specifically gave to the Senate the right to "advise" presidents on judicial nominations.

Commonly believed (probably because of the popular circa 1960 novel and movie "Advise and Consent"), this is wrong. What the Framers wrote was that the president "shall nominate, and, by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court." (Art. II, Sec. II, Para. 2.)

Not adviSe but adviCe. The distinction is a crucial one. Anybody can give anyone advice -- it's a free country -- but you can't be an adviser unless the advisee approves. So the Senate's only real constitutional role on nominees is to give or withhold consent.

Notice, by the way, that the Constitution says "judges of the Supreme Court." Judges, not justices. So those who claim to believe in the doctrine of "original intent" and of using the actual language of 1787 to decide what the Constitution means today would have to say that nine "justices" have no right to decide anything. Every Supreme Court decision since the court's judges started taking on high-falutin' ways and calling themselves "Mr. Justice" is invalid.

Speaking of "original intent," the Constitution says "the votes of both Houses shall be determined by the yeas and nays." (Art. I, Sec. VII, Para. 2.) But in House and Senate, members always vote "yes" or "aye" and "no." Votes so cast are invalid. Thomas, Souter, none of them has been legally confirmed.

Speaking of constitutional ignorance, Anne Arundel County Executive Robert Neall said the other day that if the recession lingers into next summer, "even Mickey Mouse could beat George Bush."

In fact the Constitution clearly requires that a president not be a mouse. "No person [emphasis added] except a natural born citizen shall be eligible to the office of President." Art. II, Sec. I, Para. 5.) A human being dressed as Mickey Mouse, a la Disney World, can be president. A human being whose policies and performance were Mickey Mouse-ish is constitutionally acceptable. In fact, there've been some. But the president must be an actual person.

There has been much debate about what "natural born" means in Article II. I believe it means that anyone Caesarean-born is not eligible to be president. Why don't reporters ever ask candidates about their modes of birth?

* * * ADDENDUM: I wrote here last Wednesday that professional sports teams could avoid controversy by naming themselves after despicable white men: Pirates, Raiders, Vikings and so forth. I have been reminded that the most disparaging such name of all was left off my list. The Washington baseball team was named the Senators! (After every home run, the mascot -- old white guy wearing a swallow-tail coat -- ran out on the field and took a campaign contribution from a PAC.)

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