Several news reports indicate that some Republican Senators are going to try to filibuster the confirmation of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. This effort is futile and unfortunate. Even if I believed that Judge Hamilton’s record justified opposition to his confirmation (and I do not, as I believe the Senate should be relatively deferential to a President’s judicial nominees), I would oppose a filibuster. Even if Senate Republicans had the votes to block Judge Hamilton’s confirmation, I would still feel the same way.
The strongest argument in favor of a filibuster is that Republican Senators are unwilling to engage in unilateral disarmament in fights over judicial nominations. Under this reasoning, the attempted use of the filibuster would be justified as a retaliatory measure until such time as both parties could agree to forswear future reliance upon it. I have yet to read of any Republican Senator justifying an attempted filibuster on this basis, however.
Last fall, I suggested a GOP filibuster attempt might end the filibuster of judicial nominations once and for all:
While I oppose the filibuster of judicial nominees, one practical benefit of a Republican filibuster of an Obama nominee could be the end of judicial filibusters. If Republicans were able to hold their caucus together, perhaps Senate Democrats would be prompted to cut a deal promising to forego any judicial filibusters in the future. Alternatively, perhaps a GOP filibuster would prompt Senate Democrats to invoke the nuclear option, ending judicial filibusters once and for all. Indeed, I would feel better about any GOP filibuster threats if filibustering GOP senators would commit to voting to support the nuclear option if it were invoked. In this way, GOP Senators could maintain a principled opposition to the filibuster of judicial nominations without unilaterally disarming themselves against Senate Democrats (and a President) who have supported such filibusters in the past.
Alas, I suspect this is all wishful thinking, and I suspect judicial filibusters may be with us for a while.
Cornellian says:
The best part is that the parties will save a lot of time and expense by swapping their bullet point presentations from the last time around. Democrats instead of Republicans will now insist that judicial filibusters are unconstitutional, while Republicans instead of Democrats will praise the filibuster as an essential safeguard against executive overreach.
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November 16, 2009, 11:47 pmDavid Welker says:
This is in retaliation for the failed attempt by Democrats to filibuster judicial nominees? So much for all the talk that filibustering judicial nominees was unconstitutional and therefore the “nuclear option” or “constitutional option” was justified. I guess the Constitution must have changed since the last time Republicans were in the majority...
Obviously, Republicans have no chance of sustaining a filibuster. But if any Republican Senators support this yet also supported the “constitutional option” on the theory that filibustering judicial nominees was unconstitutional, then they clearly do not take their duty to uphold the Constitution seriously.
Obviously, no principled Senator who took their oath seriously could justify violating the Constitution out of petty political retaliation.
[RESPONSE: Mr. Welker — You need to refresh your history. Several of Bush’s judicial nominees were successfully blocked through the use of the filibuster, including Miguel Estrada, Carolyn Kuhl, Henry Saad, and Charles Pickering. All four would have been confirmed by a bipartisan majority had they been allowed a vote. JHA]
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November 16, 2009, 11:57 pmHadur says:
The Democratic filibuster was not failed, David Welker. They forced Bush to withdraw several of his most controversial nominees.
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November 16, 2009, 11:58 pmDave N says:
David Welker,
I think Judge Miguel Estrada would disagree with you that the Democratic filibusters somehow “failed.”
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November 17, 2009, 12:02 amDavid Welker says:
It is reasonable, of course, to change your mind about what the Constitution requires. The document, after all, is not entirely free of ambiguity. But changing one’s mind based on petty political calculations as opposed to a serious reevaluation of what the Constitution requires would, in my opinion, be a grave offense, as it would indicate a failure to take the oath that all Senator take to uphold the Constitution seriously.
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November 17, 2009, 12:11 amDavid Welker says:
JHA,
Your right, of course. I was thinking more towards the end after the Gang of 14 agreement rather than before that point. But whether filibusters by Democrats are successful or not, I don’t see how one can assert they are unconstitutional and then engage in the very practice that you claim is unconstitutional. I would think that one’s oath to uphold the Constitution would transcend any petty political calculations.
[RESPONSE: I agree. And those Republicans who argued filibusters of nominees are not simply unadvisable, but unconstitutional, can be called to account. — JHA]
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November 17, 2009, 12:12 amcubanbob says:
The democrats are getting ‘religion’ rather late in the day. Way back when Robert Bork was borked and Clarence Johnson was having his intelligence questioned was the time for the democrats to have found the need to avoid political calculations.
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November 17, 2009, 12:23 amChico's Bail Bonds says:
Any plan that requires democrats to have a spine and stand against republican obstructionism is surely wishful thinking.
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November 17, 2009, 12:26 amDavid Welker says:
And this would excuses Republican Senators in not taking their oath to uphold the Constitution seriously how?
I want to be clear. I would not blame a Republican Senator for engaging in a judicial filibuster unless that Senator at another time asserted that such a practice was unconstitutional and then changed their position, not because of a substantive reexamination of the Constitution, but for political reasons.
Implicit in the position that the so-called “nuclear option” should be invoked to end filibusters of judicial nominees is the position that filibusters are unconstitutional. Therefore, Republican Senators who previously threatened to invoke the “nuclear option” to end judicial filibusters were taking the position that such filibusters were unconstitutional. Such Senators should only be able to back away from their previous position due to serious consideration of the Constitution on the merits, not merely because the political winds have shifted.
The oath to uphold the Constitution is more important than petty politics.
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November 17, 2009, 12:43 amSarcastro says:
cubanbob is right though. Supreme Court nominations are exactly like Appeals Court nominations.
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November 17, 2009, 12:46 amCornellian says:
Way back when Robert Bork was borked and Clarence Johnson was having his intelligence questioned was the time for the democrats to have found the need to avoid political calculations.
If Bork had been confirmed Heller would have gone the other way and no one named Clarence Johnson has ever been nominated for a seat on the Supreme Court.
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November 17, 2009, 1:00 amDangerMouse says:
Someone’s going to have to do a lot of good argumentation to convince me that filibustering is not a good idea at this time, given that the libs did it in the past, the libs are in power now, and if they add more libs to the court, the libs will wreck the country like never before.
Libs are dangerous and should be stopped by every legal means possible.
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November 17, 2009, 1:17 amGeoffCapp says:
There, I fixed that for you. ;-P
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November 17, 2009, 1:37 ameyesay says:
cubanbob wrote “The democrats are getting ‘religion’ rather late in the day. Way back when Robert Bork was borked ... was the time for the democrats to have found the need to avoid political calculations.” Bob, for your information, this discussion is about the use or abuse of the filibuster to block judicial nominees. Robert Bork was not filibustered. On October 23, 1987, the Senate rejected Bork’s confirmation on a 42–58 vote. Have a nice day.
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November 17, 2009, 1:51 amSteve says:
I thought we learned from the example of Richard Paez that it doesn’t count as a filibuster unless it actually succeeds. By Republican logic you can apparently vote against cloture all you want and still make sanctimonious arguments about how there has never, ever, ever, ever been a filibuster.
Anyway, why the Democrats would feel the need to resort to the nuclear option when there’s not even a tiny chance of a successful filibuster is beyond me. If they cared to do it just because they can, a bare majority of 50 Senators would have the power to end judicial filibusters, or end filibusters altogether, at the start of a new Congress, and there’s not even a dispute or anything “nuclear” about that statement.
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November 17, 2009, 2:05 amDavid Welker says:
Steve,
Your missing the point. Democrats should absolutely “resort” to the “constitutional option” (aka “nuclear option”) not out of a desire for mere political advantage, but because the filibuster is simply unconstitutional. The most notable thing that has ever been accomplished with the filibuster is the delay of civil rights legislation. Democrats should eliminate the filibuster not only for judicial nominations, but for all other votes in the Senate as well. They should do so as a matter of principle. Even if Republicans were in the majority, the filibuster should be eliminated. You may think that Democrats should avoid “resorting” to basic democratic principles, but I disagree.
However, there is a strong possibility that we will end up with an extreme situation. It is not unlikely that healthcare reform will end up deadlocked in the Senate, with liberals unwilling to vote for anything without a public option or other more significant reform on one hand and unprincipled Senators like Joe Lieberman (who once moved to eliminate the filibuster when Republicans had just taken control in 1994) supporting a Republican filibuster. In this situation, healthcare would be defeated without aggressive action by a majority of Democrats. At that point, it is possible that Democrats would first try to pass healthcare reform through reconciliation, but that could fail depending on the rulings of the Senate Parliamentarian. At that juncture, the choice facing Democrats will be to finally do the right thing (which they should do anyway) and end the filibuster through the so-called “nuclear option” or “constitutional option” and declare, as is their right, that the filibuster is unconstitutional. The alternative facing Democrats is the defeat of both healthcare reform and the Democratic Congress in 2010. But that would be the natural price that Democrats should pay for failing to exercise leadership.
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November 17, 2009, 2:40 amDavid Welker says:
Steve,
Your missing the point. Democrats should absolutely “resort” to the “constitutional option” (aka “nuclear option”) not out of a desire for mere political advantage, but because the filibuster is simply unconstitutional. The most notable thing that has ever been accomplished with the filibuster is the delay of civil rights legislation. Democrats should eliminate the filibuster not only for judicial nominations, but for all other votes in the Senate as well. They should do so as a matter of principle. Even if Republicans were in the majority, the filibuster should be eliminated. You may think that Democrats should avoid “resorting” to basic democratic principles, but I disagree.
However, there is a strong possibility that we will end up with an extreme situation. It is not unlikely that healthcare reform will end up deadlocked in the Senate, with liberals unwilling to vote for anything without a public option or other more significant reform on one hand and unprincipled Senators like Joe Lieberman (who once moved to eliminate the filibuster when Republicans had just taken control in 1994) supporting a Republican filibuster. In this situation, healthcare would be defeated without aggressive action by a majority of Democrats. At that point, it is possible that Democrats would first try to pass healthcare reform through reconciliation, but that could fail depending on the rulings of the Senate Parliamentarian. At that juncture, the choice facing Democrats will be to finally do the right thing (which they should do anyway) and end the filibuster through the so-called “nuclear option” or “constitutional option” and declare, as is their right, that the filibuster is unconstitutional. The alternative facing Democrats is the defeat of both healthcare reform and the Democratic Congress in 2010.
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November 17, 2009, 2:43 amRelic says:
Maybe I’m missing some talking points, but how is the filibuster “unconstitutional”? And while the former question will probably reveal it, is this unconstitutionality arrived at through playing with words (i.e. must be in the military for right to bears arms, “right to privacy”) or is it actually stated in the document?
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November 17, 2009, 3:05 ameyesay says:
David Welker: Article 1, Section 5 of the Constitution of the United States says “Each House may determine the rules of its proceedings.” Isn’t the number or fraction of votes required to invoke cloture a “rule of proceedings?” What is your theory for how the filibuster is simply (or complicatedly, for that matter) unconstitutional?
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November 17, 2009, 3:11 amyankee says:
I can’t speak for David Welker, but I thin the best argument is that, as applied, the filibuster has become a de facto supermajority vote requirement for all significant legislation. The cloture requirement was once treated as a rule of procedure, but the new tactic of filibustering everything has changed it from a procedural rule to a substantive change in the minimum number of votes required to pass legislation. And (so the argument would go) the Senate’s authority to set its own rules of procedure doesn’t extend to raising the requirement to pass legislation from a majority to a supermajority.
I’m not sure what I think of this argument, but I think that’s how it would go.
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November 17, 2009, 3:41 amDavid Welker says:
Relic and eyesay,
First, from the commencement of the first Senate, all votes were decided by a majority. In the early days of the Republic, the filibuster was completely unknown and all ordinary business in the Senate proceeded by majority vote. That the Senate operates on the basis of majority rule is not a mere “rule of proceedings” but is fundamental to the Constitution itself. During the Constitutional Convention, the allocation of votes in the legislature was a matter of great contention between the small states and the large states. Large states like Virginia wanted votes in the legislature to be allocated completely according to population. Small states like Delaware wanted votes to be allocated equally among the states regardless of their population. The result was a carefully crafted compromise that allocated equal representation to the states in the Senate and representation based on population in the House. Clearly, it was intended that both the business of the House and Senate would proceed on majority vote, otherwise power would shift to the small states at the expense of the large states. The Constitution would never have been ratified had it not been understood that the Senate would operate on a majority basis. The large states were already conceding much more than they wanted to by giving the smaller states equal representation in the Senate and would have been loathe to yield even more power to them. And in fact, the Senate did operate exclusively by majority vote at the beginning.
When our Founders wanted to require a super majority (for example, to pass a Constitutional Amendment or ratify a treaty) they explicitly included a provision in the Constitution to that effect. The Senate cannot use its power over rules of procedure so as to in effect amend the Constitution without a Constitutional Amendment. A bare majority of Senators may not use such rules to require more or less than two-thirds vote to ratify a treaty or to pass a Constitutional Amendment and it cannot change its rules to require more or less than a majority to pass ordinary legislation. To require less than a majority would shift power to the House and thus to the large states and to require more than a majority would shift power in favor of the small states. These would be fundamental changes going to the very meaning of the Constitution and violating the original carefully crafted compromise upon which our Constitution is based. The only legitimate way to change these fundamental rules would be to pass a Constitutional Amendment, and that would require the consent of more than just the Senate. It is impermissible to, in effect, fundamentally alter the careful balance struck by our Founders by having a bare majority of the Senate pass a rule that is falsely labeled as being merely procedural.
There is a further point that past Senates may not bind the discretion of future Senates to likewise govern themselves and set their own rule of proceedings. A past Senate may not proclaim, with the power and legitimacy of a mere majority, that future Senates may not change the rules, except with a super majority.
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November 17, 2009, 4:02 ampliny the elder says:
A poor choice of target: I have been involved in a few cases with Judge Hamilton and he strikes me as relatviely moderate and fair. I tend to be conservative, but I would park him in the category of as good as (or better than) we can expect.
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November 17, 2009, 4:45 amAndrew Silberfarb says:
David,
You said “That the Senate operates on the basis of majority rule is not a mere ‘rule of proceedings’ but is fundamental to the Constitution itself”. Semantically this may be correct, but practically this can’t be true. We know more about voting theory now then we did when the constitution was drafted, and it is quite clear that being able to modify the rules of proceeding is the entire game in a majority vote system. Specifically in any nontrivial voting environment being able to alter the order and choices of bills allows one to achieve any possible result, regardless of how few or how many people would actually support that option over the status quo.
The rules of procedure in the senate, and the house to a lesser extent, ameliorate this problem. The filibuster, in particular, is a strong safeguard against possible vote manipulation.
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November 17, 2009, 5:11 amDavid Nieporent says:
Welker: you have the habit of using words like “clearly” and “obviously” to bolster arguments that don’t have support. You use a lot of words to simply try to obscure the fact that the filibuster is, in fact, a procedural rule. The Senate has not changed the majority requirement; the cloture vote is an internal rule about whether to stop talking about a bill, not about whether a bill passes.
As for your little junior high school civics lesson, it’s true that, narrowly speaking, the filibuster didn’t exist “at the beginning,” if by that you mean 1789. But it is not, as you imply, a recent invention; it was established (though not by that name) within about a decade of the constitution being ratified. It’s cloture that’s a more recent innovation. IIRC, it wasn’t until the 20th century that there was a provision for ending a filibuster.
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November 17, 2009, 5:31 amOwen H. says:
I personally don’t have a problem with filibusters in general, nor the use in votes on judicial nominees in particular. I get annoyed by anyone on either side that declares it is “unconstitutional” when used against them but is perfectly willing to use it themselves in the same fashion. Right now, that’s a bunch of Republicans.
And btw, Senator Jeff Sessions has said that he plans to filibuster Obama’s nominees because it was done to Bush’s.
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November 17, 2009, 7:18 amRichard Aubrey says:
Whether the republicans are being disingenuous about their views of constitutionality, it is clear that the dems figured dems would be the only ones who were legitimately allowed to do it.
Whatever the reps’ rationalizing, it must be disorienting to the dems to see it coming back at them.
Which is kind of fun to watch.
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November 17, 2009, 7:45 amA. Zarkov says:
If fidelity to the Constitution is paramount in your mind, then you should oppose the blatantly unconstitutional individual mandate in the House health insurance bill. If you don’t, then it’s hard to take you seriously on this issue.
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November 17, 2009, 8:00 amruuffles says:
The gang of 14 stopped the nuclear option but allowed filibusters only under “extraordinary circumstances.” Sessions is now invoking that term to support his filibuster, yet Hamilton has the support (18 minute floor speech yesterday) of his home state Republican, Richard Lugar. Unless one of those you named or others had the support of a home state Democrat but was still filibustered, it’s a long road to argue “extraordinary circumstances.”
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November 17, 2009, 9:02 amruuffles says:
I’m sure they’re quaking in their booties at the prospect of having only 58 D+2 I+1 R+(likely from ME)2 R=63 votes for cloture, though it’ll be at least 65–70 assuming everyone shows up.
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November 17, 2009, 9:17 amAndy Bolen says:
I agree with the conclusion, but Hamilton is about as godawful of a judge as they come.
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November 17, 2009, 9:20 amSteve says:
There is a further point that past Senates may not bind the discretion of future Senates to likewise govern themselves and set their own rule of proceedings. A past Senate may not proclaim, with the power and legitimacy of a mere majority, that future Senates may not change the rules, except with a super majority.
But everyone agrees that the cloture rule can be amended at the start of a new Congress by majority vote, like any other rule of the Senate. I don’t buy this constitutionality argument at all, frankly.
If fidelity to the Constitution is paramount in your mind, then you should oppose the blatantly unconstitutional individual mandate in the House health insurance bill.
I wonder if David Nieporent will snark about the word “blatantly” in this sentence the same way he criticizes David Welker’s use of “clearly.” I suspect I know the reason why not.
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November 17, 2009, 9:28 amRichard Aubrey says:
ruufles.
I don’t know about quaking, but there are some folks, in and out of Congress, who seem disoriented.
It’s only supposed to go one way.
What, has the Earth’s magnetic field flipped again?
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November 17, 2009, 9:45 amruuffles says:
Who? Name a Democratic senator who is wavering on cloture for Hamilton.
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November 17, 2009, 9:57 amanother cynic says:
How about “politicians are dangerous and should be stopped”??
Fixed that for everyone.
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November 17, 2009, 9:59 amRichard Aubrey says:
ruufles.
You ought to stop the DO (deliberately obtuse) thing.
I said nothing about quaking or wavering.
I’m talking about the disorienting feeling dems and liberals get when the republicans use one of the tactics the dems and libs thought were their own.
Clearly, some of the disoriented post here.
Fun, actually, to watch.
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November 17, 2009, 10:10 amMark Field says:
This is partly right, but not entirely so. The basic situation is this: the Senate never had a rule closing off debate until the early 20th C (1917, IIRC). However, the Senate didn’t have “filibusters” per se prior to the cloture rule. There were occasional Senators who held the floor for long speeches, but there were no organized attempts to prevent a vote by that tactic (or, if there were, there were very few).
While the Constitution itself doesn’t say that majority rule applies, it’s pretty easy to find quotes from the founding era to that effect. Here are a few:
George Washington, Message to the Third Congress, November 19, 1794 (discussing the Whiskey Rebellion): “to yield to the treasonable fury of so small a portion of the United States would be to violate the fundamental principle of our Constitution, which enjoins that the will of the majority shall prevail.”
The House of Representatives, making formal response to President Washington on November 28, 1794, praising his handling of the Whiskey Rebellion: “It has demonstrated to the candid world, as well as to the American People themselves, that the great body of them, everywhere, are equally attached to the luminous and vital principle of our Constitution which enjoins that the will of the majority shall prevail....”
Thomas Jefferson, First Inaugural Address (March 4, 1801): “[I]t is proper you should understand what I deem the essential principles of our Government.... absolute acquiescence in the decisions of the majority, the vital principle of republics....”
In Federalist 58, James Madison responded to an anti-Federalist argument that the quorum in the House of Representatives ought to be more than a majority. In fact, this anti-Federalist argued, the Constitution should have required more than a majority for certain votes. Madison rejected these arguments as leading to minority rule, a rule inconsistent with fundamental republican principle:
“It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.
In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”
Similarly, Alexander Hamilton criticized the Articles of Confederation precisely because they required more than a majority vote: “Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. … To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser. … The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater….”
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November 17, 2009, 10:24 amSarcastro says:
Yes, Richard Aubrey, the Republicans are playing hardball for the first time ever! And you can tell Dems are disoriented cause they are all disorganized and whatnot, which the Democratic party never is!!
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November 17, 2009, 11:03 amfrankcross says:
I wouldn’t think you can conclude much about constitutionality from the actions of the First Congress (see Alien and Sedition Acts). Moreover, a choice to use a majority rule at that time in no way indicates that a supermajority rule is unconstitutional, just that they didn’t choose to use it. Lots of features of Congress have changed, as circumstances have changed. And the theory that a filibuster empowers small states makes no sense, it could just as easily be a tool for large states to fight off small states.
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November 17, 2009, 11:25 amHammer says:
I think the GOP is just flexing its muscles in anticipation of picking up the needed filibuster votes in the 2010 elections: Reid is tanking in Nevada, and Dodd is on his way out. Nobody in either party likes Arlen Specter. Heck, even Roland Burris might end up replaced by a Republican if he keeps opening his mouth.
Thus, the threat of 2011 filibusters means Reid has to fast-track judicial nominees now — one more thing to worry about while trying to finish Health Care reform.
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November 17, 2009, 11:28 amRichard Aubrey says:
Sarc.
Seen any SCOTUS nominee borked the way Bork and Thomas were?
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November 17, 2009, 11:49 amfishbane says:
Seen any SCOTUS nominee borked the way Bork and Thomas were?
And around and around we go. Point at the filibuster of Bork, Richard.
I understand Bob Bork’s reasons for feeling bitter 22 years later. I fail to comprehend why some partisans are still feeling such a sense of victimization that they justify any and everything about any nomination with “but-but-Bork!”
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November 17, 2009, 12:20 pmEcon_Scott says:
Mr. Adler:
All well & good. With your sissified moralizing you have forgotten an immutable law of man and nature.
“What goes around, comes around”
http://www.nrlc.org/judicial/SenateShowdown.html
http://www.judgingtheenvironment.org/press/in_the_news/archive/greenwire-01–03-05.pdf
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November 17, 2009, 12:41 pmRichard Aubrey says:
fishbane.
I think the point is, if the dems do it, the repubs are not supposed to.
They repubs seem to be doing it.
Hence the cognitive dissociation.
And I’m not talking merely about filibustering, but of partisan crap, whether lying (kennedy & co and bork) or...lying (hill & co and thomas), along with sympathetic media coverage for...the liars.
IMO, that’s morally worse than a filibuster.
However, the filibuster is a subset of partisan activities, and I was referring to the latter in my question about borking.
Overdone literalism and question ducking work better when you’re posturing in front of a somnolent jury just after they’ve had a high-carb, 2500 calorie lunch.
Here, not so much.
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November 17, 2009, 12:48 pmNunzio says:
I suppose a Republican Senator who thought filibustering judicial nominees was unconstitutional, or just unwise, could with a straight face support them against Obama’s nominees because Obama himself supported them as a Senator. Sort of the hold him to his own standard exception.
That said, I’m not sure why Hamilton is a controversial nominee. Then again, I didn’t see why Estrada was controversial.
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November 17, 2009, 1:11 pmfishbane says:
I think the point is, if the dems do it, the repubs are not supposed to.
Here’s where I differ. I think both parties act like opportunistic jerks when they do it, most of the time. (I, personally, am conflicted on Bork. Like our host, I think in most cases deference should be offered. Like you, I think Kennedy was over the top back ‘when, and did cross from partisan rhetoric to outright lying. I also believe Bork was and is an extremist who would have been dangerous to have on the Court. I don’t expect you to agree with me there, and this doesn’t excuse Kennedy and friends; I’m just sharing where I’m coming from.)
I think, unlike you, I don’t see cognitive dissonance. Both parties play this stupid game, flipping roles depending who’s in power. When in power, $party is doing God’s Own Work and being disrupted by the antics of the minority opposition, which is acting unconstitutionally/Borking/killing puppies, and so the filibuster must die. Just swap the variable as appropriate.
The Republicans harldy have a principled position here, which is what you seem to be implying when crying Bork.
Fact is, neither side do, which is what, in very broad strokes, I think Adler gets to in his discussion of strategies to get out of this trap.
Overdone literalism and question ducking work better when you’re posturing in front of a somnolent jury just after they’ve had a high-carb, 2500 calorie lunch.
Vague allusions that leave a slippery false impression in an uncareful reader’s mind are just fine, though, eh?
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November 17, 2009, 1:16 pmRichard Aubrey says:
Nunzio.
Hey, isn’t that one of Alinsky’s rules?
Make them live up to their own standards?
It works really well when the other side professes no standards whatsoever.
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November 17, 2009, 1:27 pmptt says:
In order to satisfy the Republican lust for retaliation, perhaps Obama should nominate a few candidates as far to the left as some of Bush’s were to the right. This could be carried forth by the next president, whoever that might be, and become a sort of appointment of honor, Chew-Toy for the Opposition.
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November 17, 2009, 1:50 pmEcon_Scott says:
Mr. Mahmoud:
“Hamilton is anti-Christian and pro-Muslim, and a radical, or, just like Obama.
This is pointless. Will any Democrats join a filibuster? Enough to overcome the usual suspects like Snowe and Graham?”
———————
It’s hard to say. If they go for it they probably have Lieberman plus one or two signed on.
Even if it’s doomed to fail I don’t think it’s pointless. It will demonstrate some spine and to the disaffected Obama Independents might do some good in getting out the vote in 2010. At this juncture, I’d fully support the GOP caucus going totally nuclear on all judicial nominees, and using whatever porcupine defense that works, (Short of manufacturing sexual lies on television with Anita Hill as prosectuion star witness)
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November 17, 2009, 2:03 pmDavid Welker says:
If the filibuster has changed the Senate so that it requires 60-votes to pass ordinary legislation, that is not a mere procedural rule, but instead a Constitutional amendment.
And the filibuster has in fact changed the Senate in exactly this way.
Imagine the following hypothetical Senate Rule:
To be consistent with your argument that the filibuster is merely a procedural rule, you would have to agree that this is a mere procedural rule as well. To acknowledge that this rule would be unconstitutional, you have to recognize that it fundamentally alters the nature of the institution. But so does the filibuster.
Your argument that the filibuster is merely procedural has nothing to do with the truth or concern for fidelity with the Constitution, and everything to do with what you believe is politically advantageous.
That is obvious.
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November 17, 2009, 2:13 pmEcon_Scott says:
That this topic appears at all in Law Professors’ blog is only that it is about judges ... who get appointed and confirmed in a purely political process.
“war is just a continuation of politics by other means”
“It takes two to make peace but only one to make war.”
The Democrats in the White House and the Senate have been at war with the rest of the country over Judicial appointments since the election of Abraham Lincoln.
They shouldn’t get all hissy pissy when the other side sets aside pressing business and fights back from time to time. For the Dem’s to cry about it makes them look weak and effeminate (and not in a good way.)
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November 17, 2009, 2:14 pmDavid Welker says:
Mark Field,
Thanks for the provision of excellent quotes which quite clearly illustrate the basic understanding of the Founders with respect to how ordinary business would proceed in the House and the Senate.
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November 17, 2009, 2:22 pmcboldt says:
– It’s cloture that’s a more recent innovation. IIRC, it wasn’t until the 20th century that there was a provision for ending a filibuster. –
See Gold and Gupta: Creation of the Filibuster, which points out the original senate rules included a “move the question” provision. This provision was dropped in 1806, but the blocking of legislation (and other matters) by refusing to vote was properly considered dysfunctional.
That said, even though I think the abuse of the right to unlimited debate of nominees (effectively, a veto power to a minority of Senators) upsets the balance of powers between the Senate and the executive, I subscribe to “tit for tat.” Unprincipled? Sure. So what? “Principled politics” is an oxymoron.
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November 17, 2009, 2:23 pmEcon_Scott says:
Is it a clear affirmation of the operation of the Senate to quote Jefferson and Washington about the sanctity of “the will of the majority” on “advise and consent provisions”
From an era of American Government when the majority vote included everyone ... except for Women, Blacks, American Indians, and “men without property” ?
If that is what majority rule is, then the Senate (as the millionaire’s club) is only slightly changed to include a few millionaire women and a token American Indian.
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November 17, 2009, 2:40 pmDavid Welker says:
Stalin would agree with you.
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November 17, 2009, 2:44 pmSarcastro says:
It is amazing how procedure and substance are somehow related, isn’t it?
I wanna talk more about how voting against Bork and Thomas is kinda like a failed filibuster, cause that’s a much better debate than about Republicans’ knee-jerk anti-Obama reactions to some moderate Appellate guy!
Roberts and Alito were totally almost borked. Cause all Republican nominees are exactly as radical as Bork.
Only preemptive accusations of borkatiousness stopped the borking!
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November 17, 2009, 2:47 pmRelic says:
The filibuster is a procedural rule. It’s effects do not make it unconstitutional. It’s not a bill or policy after all. If the Dems want to prevent it, they can. They won’t, but they can.
To reply to your “it wasn’t there in the beginning” comment: if Wikipedia is to be believed, the filibuster has existed since ancient Rome. It is highly unlikely that the founders were not aware that it could occur when they wrote the document. I find it telling that, in 200 years, it has never been declared officially unconstitutional.
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November 17, 2009, 3:15 pmMark Field says:
Philosophically this makes sense. In context, though, it doesn’t. They clearly meant “the majority of those eligible to vote and voting”. We say the same about ancient Athens, though the slaves far outnumbered the citizens.
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November 17, 2009, 3:19 pmgeokstr says:
He wasn’t, unless you happen to have the political mindset that a member of a minority that is supposed to have reliably liberal views and vote democratic forever chooses to disagree with you (i.e., Thomas), means he is not only “controversial”, but so dangerous that he must be stopped at any cost to prevent inroads into your own base.
From that font of rightwing orthodoxy, Wikipedia:
So it is apparently just hunky-dory with the left ethically to do anything necessary to stop “attractive” opposing candidates, including lying about their own obviously racist motivations. Explains a lot with regard to others currently being targetted for personal destruction by the left.
I’m sure if Estrada had been allowed to come up for a vote, that’s when the borking would have begun, you know, things like about how if he was approved, all Mexican immigrants, even legals, would be in danger of lynching by angry white mobs, etc. As a last resort they could have found a secretary or other co-worker to claim Estrada had planted a pubic hair on her taco or something. It almost worked last time.
The ends justify the means, and all that.
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November 17, 2009, 3:21 pmfrankcross says:
David Welker, you seem to say that it’s not a procedural rule because it has substantive effect. That’s not logical. Procedural rules commonly have great substantive effect. The principle of standing, for example, is procedural but it has great substantive effect. The very notion of congressional committees has enormous substantive effect — are they unconstitutional?
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November 17, 2009, 3:39 pmEcon_Scott says:
Thanks for bringing that up. Buttresses the conclusion:
“If that is what majority rule is, then the Senate (as the millionaire’s club) is only slightly changed to include a few millionaire women and a token American Indian.”
( and of course the Token African American who we all know was obviously sent to the Senate in a clear and extremely clean “majority rule” process, Senator Buriss , who just might be the filibuster tie breaker in a “majority Rule plus 9″ process)
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November 17, 2009, 3:43 pmloki13 says:
Wow.... I get chills.... what an erie statement. :)
The procedure/substance line is one that is always bedeviling. I happen to agree with David Welker, though, that this is a substantive change, and simply because it was achieved through a procedural means doesn’t make it kosher. One can make all sorts of hypotheticals of rule changes the Senate could make that would clearly (paging DMN!) be unconstituional. FOr example, if the Senate passed an internal rule that the junior senator of the state would give their vote to the senior senator, who would then vote for them, it might be a procedural change in the voting mechanism, but it would clearly be a substantive violation of Art. I (each Senator has one vote). If the senate had a rule that no bill could be voted on unless the bill received a “pre-vote” of at least 80% of the senators, again that would be clearly (Yes!) unconstituonal.
I think a rule that causes a de facto requirement of 60 votes to pass legislatoin, or to approve judges, is *arguably* unconstitutional. I don’t think filibustering (in the sense of a senator standing and speaking until the cows come home) is, but changing the voting mechanism to require more than a majority most likely is.
I write arguably because I lack 1) I don’t know exactly when it’s applied and 2) I don’t care to research it. This would be fact-intensive. But I think it’s colorable, and I think the Senate is abdicating their constitutional duties by continuing to allow it. In the long run, the GOP will have power again, and the country would run a little better for both sides if we got rid of this.
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November 17, 2009, 4:25 pmRichard Aubrey says:
geokstr
Only if the dems do it.
You’ll note the confusion hereabouts when the reps do it.
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November 17, 2009, 4:39 pmDavid Nieporent says:
Because (AFAIK) Zarkov isn’t a lawyer, and isn’t holding himself as offering informed legal analysis; anybody who reads that comment understands that Zarkov is merely stating his lay opinion, and that he’s just using “blatantly” as an intensifier. Welker, though, is an attorney, and purports to be offering reasonably authoritative commentary, and he’s using terms like “clearly” and “obviously” simply in an attempt to foreclose dissent.
In that vein:
I don’t disagree; there are some rules that are so far out there that no reasonable person could disagree that they’d be unconstitutional. I have no problem with that claim in the abstract — just with Welker’s claims that hotly-disputed issues are “clear” and “obvious.”
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November 17, 2009, 4:40 pmDavid Nieporent says:
I’m not sure I disagree with most of this, but since when did the Senate “change the voting mechanism to require more than a majority”? Sure, the media treats it that way, but cloture is a vote to end debate on the bill, not a vote on the bill.
Yes, in a sense 60 votes is sometimes a de facto requirement, but by definition de facto is not de jure.
I find it rather problematic to suggest that speaking for a long time is not unconstitutional (as you concede), but that, what, if it’s done too often, or too systematically, then it is?
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November 17, 2009, 4:48 pmMark Field says:
Durbin was part of a fiendishly clever disinformation campaign. The actual goal was to preserve Estrada’s availability to represent John Yoo.
As in the other thread, I’m joking, of course.
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November 17, 2009, 5:09 pmDavid Welker says:
Of course procedural rules have effects. (The adjective “substantive” here adds nothing to the noun “effect.”) If they didn’t, we wouldn’t need them.
That the rules have effects is not the issue. No one would deny that an ordinary law has effects. And no one would argue that an ordinary law can also be unconstitutional because of those effects.
I am not arguing against this particular procedural rule merely because it has some effect on the world. Just as I wouldn’t argue against an ordinary law because it has effects on the world. I am arguing against the procedural rule because of the particular effect it has in blatantly violating the Constitution, which envisioned the Senate as passing ordinary legislation by majority vote.
Your tired argument from civil procedure 101 that the line between procedure and substance is blurry is simply not relevant. The rule is not unconstitutional because it has an effect. The rule is unconstitutional because of the particular effect it has of fundamentally altering the basic structure and function of our government in a manner that is clearly contrary to the delicate compromise between the large and small states memorialized in our Constitution.
Really, what is your argument? That while the laws that the Senate passes may be deemed unconstitutional, that the rules of proceedings never may be? A law is not automatically Constitutional merely because the Constitution authorizes Congress to pass laws. Likewise, rules of the Senate are not automatically Constitutional merely because the Constitution authorizes the Senate to pass rules.
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November 17, 2009, 5:41 pmHerb Spencer says:
Perhaps, but sometimes even the best is not good enough. I find his tendency to pontificate for its own sake disturbing, and it may only increase with his elevation. Something about “Power corrupts, ...” I think.
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November 17, 2009, 5:48 pmfrankcross says:
No, I’m not arguing that rules cannot be evaluated for constitutionality in the abstract. Although I suspect that the courts would come very close to making such a ruling, under the political question doctrine or the broad constitutional language. I’m arguing that you are just asserting that this was contrary to the original intent without evidence. I’m aware of no such evidence and you have presented none. Assuming that originalism is even the governing standard.
And, as I noted, the Committee system is a far greater infringement on majority rule in Congress. It may allow one single Senator (not forty) to prevent the majority from acting on legislation. In fact, I would suspect that virtually every rule of Congress could have this effect. Which would pretty much gut the authority of Congress to make rules governing its procedures.
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November 17, 2009, 6:01 pmDavid Welker says:
The difference between de facto and de jure is not that with de jure one can make spurious distinctions, whereas with de facto one must actually address the real world.
In a previous thread, you argued rather strenuously against the idea (which I never proposed, by the way) that if Kelo had gone the other way that the City of New London proceeding with the Pfizer project by taking ownership of the property and then leasing it to Pfizer. It is interesting how you do not allow spurious distinctions to eviscerate the provisions of the Constitution you actually care about, the distinction between de facto and de jure notwithstanding.
In fact, the entirety of the Constitution could be evaded in its entirety through the manufacture of spurious distinctions, if such distinctions were accepted without regard to their correspondence with reality.
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November 17, 2009, 6:13 pmDavid Welker says:
Senators have an independent duty to ensure that their rules are constitutional. They take an oath to uphold the Constitution that is every bit as serious and solemn as the oath taken by federal judges. I am not proposing bringing a case through the courts. I am proposing that a majority of Senators take back control of their own institution.
Well, then you apparently cannot read. I do not know what is to be done to help you.
If the committee structure were to actually thwart the will of a majority of Senators in a way that the original committee structure in the First Senate did not, I would agree that we would be under an obligation to return to the committee structure adopted by the First Senate or one compatible with it.
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November 17, 2009, 6:26 pmAnthony says:
It did? I cannot find anything in the Constitution specifying requirements for passing ordinary legislation, other than the definition of a quorum. There are several cases where a supermajority is required, and the electoral college specifies a majority, but nothing for ordinary legislation.
In any case, unsurprisingly, this filibuster went down in flames today.
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November 17, 2009, 7:01 pmBrett says:
Both McCain and Graham voted against cloture today, apparently without needing to explain how Hamilton’s nomination presented “extraordinary circumstances.”
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November 17, 2009, 7:36 pmMark Field says:
It’s pretty hard to read Madison’s discussion of the quorum requirement in Federalist 58 as anything other than a statement that majority rule was the whole idea of republican government. And see Hamilton’s argument against the Articles of Confederation in Federalist 22.
I would expect, by the way, that originalists would be under the obligation of coming up with some evidence against majority rule from the Founding era if they want to defend the practice now. I’d be shocked if they can find any — the agreement on majority rule, except in specified exceptions, was universal.
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November 17, 2009, 8:52 pmLeo Marvin says:
Richard, as usual you display an uncanny ability to read the minds of people you disagree with. Either that or you have a vivid imagination.
Why would they think it was “their own?” Are you suggesting the Democrats thought they’d never again control the White House and the Senate? Or is it just that they foolishly believed the Republicans who said their objection to filibustering judicial nominees was principled?
What we know for sure is that any of those Republicans who joined today’s attempted filibuster are hypocrites. If any Democrats who objected to the nuclear option on principle ever vote to implement it, they’ll be hypocrites too. But at least for today, the only hypocrites on display are Republicans.
Clearly
It can be, but it gets kind of old.
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November 17, 2009, 9:08 pmOren says:
No, the Senate is a deliberative body and can structure its rules however it sees fit. No Senate can bind a future Senate to its rules (contrary to Reid’s silly assertions to the contrary).
The Constitution does not dictate the rules of the Senate except to assert that they must be written to the satisfaction of the majority of the Senators.
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November 17, 2009, 10:35 pmrpt says:
Hamilton approved: 70–29. End of thread.
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November 17, 2009, 10:37 pmOren says:
But can the majority, consistent with majority rule, craft a rule that requires a supermajority? I think it’s quite obvious that they can (so long as they can repeal it by majority vote whenever they want).
What the Gang of 14 effectively did, when promising to vote against a rule change, was assert that a bare majority of the Senate is of the mind that a bare majority of the Senate should be insufficient to confirm a nominee. I don’t see any other way to understand their votes.
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November 17, 2009, 10:41 pmOren says:
Capable of repetition but evading review, motion to dismiss denied.
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November 17, 2009, 10:49 pmMark Field says:
Theoretically, I don’t have a problem with this. The problem is that such a rule creates a “precedent” which the majority then becomes reluctant to change for reasons unrelated to the specifics of a given issue. In that sense, it prevents consideration on the merits by the majority.
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November 18, 2009, 12:03 amJim M says:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.
Please enlighten me how a filibuster is unconstitutional. I contend you are wrong. Even in the section on advise and consent, there is NO statement of how the Senate must approve the appointments. If the Senate wanted to just say that a committee of three Senators would be responsible, I see nothing in the Constitution to prohibit this. Only ratification of treaties and veto overides have an explicit direction on how they must be done.
Now, you are right that they can change the rule with a majority vote at any time. I agree with that. However, it is called the nuclear option for a reason. You will have to completely change the rules of the Senate, and therefore the style it works in, if this is done. The nuclear option means unanimous consent is dead in the Senate because the minority party will object in retaliation for the nuclear option, hence its name.
I was against the nuclear option before and I am against it now. It would change the face of the Senate. I guess some people want a more streamlined and efficient Congress. I don’t. It seems like the faster things get done, the more they are messed up. Now if you want to say that you don’t think the Senate runs well and the rules are wrong or immoral, I may not agree but I will not say you are wrong. However, your argument on the unconstitutionality of judicial appointments is high grade balderdash.
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November 18, 2009, 12:20 amOren says:
Well, LBJ suspended the cloture requirement, then passed a rule saying that he had never suspended the cloture requirement. Neither Reid nor Frist had that kind of chutzpah.
Substantively, if 51 Senators believe that preserving the precedent is worth more than consideration of the merits, that suffices for me. The judgment of those 51 Senators must be that the merits of the matter aren’t all that important anyway.
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November 18, 2009, 10:06 amRichard Aubrey says:
Leo Marvin,
I don’t read minds, except those whose conclusions are in flashing neon on the owner’s forehead.
I don’t, for reasons of economy, caveat everything I say with “there may be another reason, but its likelihood ranges from pretty unlikely to never in a million years.”
I don’t add “It would take an assault on Occam to hypothesize a less nefarious explanation.”
Stuff like that.
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November 18, 2009, 10:14 amAnthony says:
It’s hard for me to see how that’s a part of the Constitution. In any case, it’s obvious that the concept of a supermajority was accepted (as one is required in several places), and I think it’s implicit that a bill cannot pass with less than majority support, but if the Senate wants to place additional procedural roadblocks (such as filibusters, or the committee system) you’ll have a hard time convincing me that there’s a constitutional issue here.
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November 18, 2009, 12:22 pmMark Field says:
The Constitution doesn’t prescribe any particular method of interpretation, so everyone, liberal and conservative alike, has to rely on outside principles when it comes to interpretation. Originalists, to whom my comments were directed, rely on the original public meaning of the document. The Federalist is evidence of that. So are the other statements I quoted above. I’m not aware of any counterevidence.
If you’re not an originalist, you needn’t accept the Federalist as evidence, of course. But the fact that it’s not part of the Constitution isn’t, standing alone, reason to reject it.
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November 18, 2009, 12:33 pmRPT says:
You’re right; the issue will arise again.
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November 18, 2009, 12:42 pmDavid Welker says:
That is not true of traditional originalists. This is the newfangled sort of originalism. Traditional originalists focused heavily on original intent.
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November 18, 2009, 12:46 pmAnthony says:
This isn’t an interpretation issue. Interpretation is ‘clause X is present in the Constitution. What does it mean?’ Please specify what clause of the Constitution you are interpreting when you find this requirement for how the Senate should go about its business.
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November 18, 2009, 12:46 pmMark Field says:
Agreed. I think the latter has been pretty thoroughly discredited by now.
Sure it’s an interpretation issue. The presence or absence of text isn’t relevant.
An easy example of an interpretive issue with no text is the question whether the President can fire the appointees who have been confirmed by the Senate. This issue occupied hundreds of pages of debate in the First Congress, formed the basis of the impeachment of Andrew Johnson, and was resolved (at least to some extent) by the Supreme Court in 1927.
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November 18, 2009, 1:27 pmGet informed says:
Whomever said that Sen. Sessions was going to support a fillibuster has not read Sen. Session’s webpage:
“Senator Sessions believes that each of the President’s judicial nominees, regardless of the party affiliation of the President, deserves a hearing before the Judiciary Committee, an expeditious consideration, whether or not to report the nominee favorably to the full Senate, and a final up-or-down vote on the Senate floor.”
http://www.jeffsessions.com/issues/details.aspx?id=6
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November 18, 2009, 1:37 pmLeo Marvin says:
In other words you don’t read minds except when you do.
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November 18, 2009, 4:51 pmRichard Aubrey says:
Leo. Exactly. If the person’s mindset is flashingly obvious, yeah.
Like everybody else.
For the rest, it’s just the most likely answer, but since I don’t use the caveats, somebody who hasn’t a clue or any way to actually debate the issue can claim I’m reading minds.
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November 18, 2009, 8:50 pmLeo Marvin says:
Originalists. Traditional originalists. Famous traditional originalists. Why do I suddenly crave pizza?
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November 18, 2009, 10:31 pmLeo Marvin says:
Richard, “It’s obvious” can explain physical observations, e.g., “It’s hot,” “She’s tall,” “That smells,” but doesn’t cut it for conjecture about mental states, especially those of people you hostilely oppose. Moreover, I explained why not only aren’t your accusations obvious, they’re quite illogical. You’ll have to do better, and you might start by responding to the arguments I made, instead of pretending I didn’t make them.
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November 18, 2009, 11:22 pm