THE HIP BONE CONNECTED TO THE LEG BONE (OR, HARD TO BE POSITIVE ABOUT THIS, PART II)

I hope that the leader of the Senate Republicans (M.D.) knows more about anatomy than he knows about what is "in the Constitution." Here's a recent poll question from his web site:

Should the President's nominees to the federal bench be allowed an up or down vote on confirmation as specified in the Constitution?

The "no's" have it, partly because Atrios called attention to the poll.

The problem with the question is that it signals a woeful ignorance of what is actually "in the Constitution," and this from the person whom Senate Republicans chose to be their leader.

Tell me, Mr. Frist, where does it "specify in the Constitution" that nominees to the federal bench should be "allowed an up or down vote." And if you find the passage where it "specifies" an "up or down vote," then make sure that you're (a) not high, (b) not reading the GOP talking points on judges, and (c) not tired and delusional from pretending to debate judges for 30 hours straight. The Constitution does not specify precise decision rules about how judges are to be confirmed. Sorry, Mr. Frist. It ain't there.

Frankly, I just love it when people who fill the air with fine phrases about "following the law" can't even state with any degree of accuracy what the law actually is. In fact, I think that this episode gives a clue as to what "following the law" means for Frist and his fellow partisans: following the rules that you wish were actually written down somewhere but aren't, and then fudging the difference between the two conditions.

Frist is a fake textualist. Oh well.

MORE: This post wallows in the dubious pleasure of pointing out the errors of others. But there's a serious point here that I hope hasn't been missed. Next week I'm gearing up to discuss some landmark abortion cases in my Constitutional Law class. If one of my students were to say, "abortion rights should be protected, as the Constitution specifies," I would ask them where the Constitution specifies that particular right as deserving of protection. Similarly, when we talk about Lawrence, if one of my students were to say, "sexual privacy should be protected even in unconventional forms, as the Constitution specifies," I'd ask the same question.

Conservatives would immediately recognize these areas of constitutional law as areas that involve judicial interpretations of "liberty," interpretations that they believe have strayed too far from the text, or from the intent of the framers, or community opinion -- take your pick. But when it comes to attempting to make an argument that is in their own electoral ambit, the Senate Republican leader can't even state the textual issues accurately. (I should say also that if a student were to argue along the lines of Timothy Sandefur, and say that when government regulates your property and causes you an economic loss, then you should be compensated for this loss, "as the Constitution specifies," I'd make the same point.) This is not to say that there aren't arguments to be made concerning an "up or down vote" requirement implied by the text, or by the history of appointments, Senate practice, the intent of the Framers, or what have you. I think that these arguments fail. However you stand on that issue, though, to say that the text "specifies" such a vote is to attempt to tap into a powerful source of legitimacy in public discourse (and perhaps this legitimacy with respect to the text is more pronounced there than in professional legal discourse), namely, the clarity of constitutional requirements. What's important about this issue is that a reference to the text alone obscures the inevitable acts of interpretation, judgment, and considerations of current ends and means that always goes into attempts to make a claim on constitutional meaning. It's a heck of a lot easier to see those acts when they result in arguments that you find unpersuasive. Such a frail thing is reason.

The fact that both Senate Republicans like Frist and the broader public influenced by opinion leaders believe that the text "specifies" a requirement of an "up or down vote" could be read as a sad indication of public ignorance of what words are actually present in the constitutional text itself. For educators like me (and people who care about the possibility of constitutionalism as a practice of constraining power through written texts), this ignorance might be lamentable because it shows the inevitable imperfections of public discourse. This lament could also be described in a less charitable fashion as mere pedantry. Perhaps it is.

Nonetheless, my point is that the text alone won't save you on most important issues. There's no use hiding from that fact. Unless, of course, you hope that no one will notice what you are doing. This is generally not a controversial point among experts, Hugo Black and his famous statement "no law means no law" (for 1st Amendment purposes) excepted. I'm not sure that Bill First should give a flying hoot what I think about a silly little constituent-pleasing poll on his web site. The poll is still misleading, even if it's midleading in ways that I think are typical for certain kinds of Republicans, who want to take the constitutional high ground of clarity and who even appear to lie about their ability to do so. Perhaps they're even lying to themselves? Or perhaps they're just not careful, or not interested in the details here. I don't know. I suppose I'd prefer to believe that they're simply ignorant rather than careless or mendacious for rhetorical purposes. I'm a romantic at heart, I guess.

MORE: What bad internet behavior: the poll is now gone, as Atrios notes here, and in its place is a more interpretively defensible (if still loaded) version of the question.

MORE: You can read the old version of the poll for now, I hope, here.

MORE: Nope, sorry. The results are here but the question has vanished. If history isn't in your favor, even if it's just from this afternoon, erase it and put something else in its place.

MORE: Oh my God. They didn't like the result, so they changed the question to mean precisely the opposite. Now the question is:

Should the Senate minority block the body's Constitutional duty to provide the President's judicial nominees with an up or down vote?

But they've kept the same vote totals.