Mark Field:

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.

When article I section 3 says, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided,” doesn’t this mean that decisions on bills are to be by simple majority vote? And further, that a Senate rule effectively requiring a supermajority to adopt legislation thereby strips the vice presidency of its sole constitutional duty?

It’s all threat now. No one has to put his mouth where his money is. Let C-SPAN 2 show the world’s greatest deliberative body pretend to deliberate, and let’s see just how many issues really are worth the trouble of “extended debate.”

Richard Aubrey:
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.

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.

David Welker:
That is not true of traditional originalists. This is the newfangled sort of originalism. Traditional originalists focused heavily on original intent.

Originalists. Traditional originalists. Famous traditional originalists. Why do I suddenly crave pizza?

Richard Aubrey: 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.

In other words you don’t read minds except when you do.

“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

That is not true of traditional originalists. This is the newfangled sort of originalism. Traditional originalists focused heavily on original intent.

Agreed. I think the latter has been pretty thoroughly discredited by now.

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.

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.

Mark Field:
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.

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.

Originalists, to whom my comments were directed, rely on the original public meaning of the document.

That is not true of traditional originalists. This is the newfangled sort of originalism. Traditional originalists focused heavily on original intent.

Oren: Capable of repetition but evading review, motion to dismiss denied.

You’re right; the issue will arise again.

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.

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.

Mark Field:
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.

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.

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.

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.

David Welker:
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.

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.

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).

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.

Hamilton approved: 70–29. End of thread.

Capable of repetition but evading review, motion to dismiss denied.

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.

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.

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.

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.

Richard Aubrey: 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.

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.

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.

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, some of the disoriented post here.

Clearly

Fun, actually, to watch.

It can be, but it gets kind of old.

I cannot find anything in the Constitution specifying requirements for passing ordinary legislation, other than the definition of a quorum.

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.

David Welker: 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.

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.

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.

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.

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.

Well, then you apparently cannot read. I do not know what is to be done to help you.

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.

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.

Yes, in a sense 60 votes is sometimes a de facto requirement, but by definition de facto is not de jure.

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.

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.

pliny the elder: 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.

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.

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?

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.

From that font of rightwing orthodoxy, Wikipedia

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.

loki13: 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’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?

Steve: 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.

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:

loki13: One can make all sorts of hypotheticals of rule changes the Senate could make that would clearly (paging DMN!) be unconstituional.

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.”

You’ll note the confusion hereabouts when the reps do it.

frankcross: 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?

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.