And I assume that there isn’t 2/3 (or perhaps even majority) support for eliminating or reducing the 3/5 requirement – each side recognizes that it might be in the minority and each side recognizes that it is politically vulnerable if it is in the minority and is successfully painted as “obstructionist.”

But there is a genuine problem even when the majority has the ability to garner 3/5 support to end debate. Why? Because (based on my understanding of Senate Rule XXII and please correct me if I’m wrong) it is a royal pain in the neck to proceed to a vote on the bill/nomination even when you have the votes you need to get 3/5 in favor of ending debate.

There is a two-day delay after filing a motion to invoke cloture and a 30-hour debate period after everyone’s voted and the majority has shown that it has 3/5 support. The 30-hour debate period enables 40 Senators – or even one Senateor – to force the Senate, over and over, to go through the cloture procedure – even if the cloture motion won by 99-1.

This is why “holds” are so potent: One Senator – even if he’s the only one who objects to a nomination or bill – can force the rest of the Senate to go through this lengthy process.

Possible solution? Get rid of the 30-hour rule. Once cloture has been invoked – i.e, the majority has shown that it has 60 votes – debate’s over.

The minority (i.e., 41 or more) still can block what it wants to block – with all the attendant political consequences. Whatever protection is provided by the two-day delay remains intact (since the 2-day delay doesn’t take up Senate time). But if the majority has its 3/5, it gets to go to a vote and you don’t lose 30 hours engaging in a pointless exercise – done not to kill the specific bill or nominee – but to so delay matters that lots of random items can’t get done.

It’s important to remember that the WaPo story is from 1985. Since then, many Senate Democrats, most notably Senator Schumer, have embraced the idea that ideology alone is a sufficient basis for opposing a nominee.

JHA

I don’t think that’s true. There is abundant evidence that Democrats have opposed many judicial nominees on ideological grounds. It would be more correct to say that Democrats are loath to be seen to oppose a nominee on ideological grounds.

Thus they invent other excuses. Or they justify ideological opposition by misrepresenting the nominee – as when Sen. Schumer labeled Miguel Estrada “a Stealth missile – with a nose cone – coming out of the right wing’s deepest silo.” Or when Robert Bork is described as a “bona fide extremist”.

(I find it difficult to understand how someone who taught at Yale University for 17 years, was Solicitor General, and served as a federal Appellate Judge for six years somehow became a “bona fide extremist” when he was nominated for the Supreme Court.)

This is also the same reason we have the 2/3 supermajority for ratifying treaties — does that “embarrass the operations of government?

Why yes. A two-thirds requirement to ratify treaties does in fact have a “direct tendency” to “embarrass the operations” of government. To avoid too much embarrassment on this score, the Constitution only requires the two-thirds votes of all Senators “present,” as opposed to two-thirds of all Senators. But, what are the consequences of this embarrassment? The worst consequence is that we avoid “entanglements” with foreign nations, something that the Founders were very wary of in any case. In contrast, “embarrassment in the operation of government” that prevent us from getting our own house in order or passing ordinary legislation can have much more dire consequences.

Note the careful compromise here. The Founders recognized the danger of super majority requirements. That is why they softened the two-thirds requirement for treaty ratification to two-thirds of Senators “present” rather than two-thirds of all Senators. They also put this super majority requirement into the text of the Constitution. It is the exception, not the rule.

Now, you have said something about how, in your opinion, maybe super majority requirements are not such a bad idea. But I could care less about your opinion on that topic. Constitutions are very difficult to establish, whereas your opinion could change tomorrow. Also, no one has any say on what your opinion is. Your opinion was never the subject of a contentious constitutional convention, nor was it ratified by states, nor does it have any other legitimacy. For these reasons, we should be governed by the Constitution rather than your opinion.

Now, if you would like to try to produce evidence that supports a view that the Senate was intended to proceed in ordinary business by anything other than majority vote, feel free. No one before you has managed to produce even an iota of evidence for such a proposition, other than their personal opinions that hey, maybe embarrassing the operations of government in the functioning of its ordinary business is a good thing.

We all needed a laugh.

Duffy Pratt: Remind me about the facts of Marbury v. Madison. It predates Social Security a little.

And the Federalist no. 78 was written in 1788 – so we made it about 12-13 years, huh? If only the Court exercised its holding a little more…

Once again, the most relevant portion of the Federalist papers is the one I quoted in Federalist 75. The Senate was intended to proceed by majority vote. Moving away from that has “embarrassed the operations of government,” just as Hamilton predicted. The Articles of Confederation failed in large part because of super majorities were required to raise revenue. As soon as you move away from majority vote within an institution, you are giving the minority as much power as the majority and you are asking for deadlock, because the majority will have a tendency to think that either we should proceed without giving the minority practically everything it wants. Alternatively, you are subjecting the will of the majority to the minority, because the majority will tend to be the party that is suggesting movement away from the status quo, while the minority will tend to be happy to create paralysis in the hope that it will become the new majority and be able to implement policy in the future that better reflects is preferences.

If the problem here was the process by which appointments to the federal courts are made (by Senate confirmation), I would agree with you – but the relevant problem is the lack of the independent judiciary as a check on the Senate and President, hence, “The Judiciary Department” is the most relevant. The problem is with the outcome of the process (the stakes are so high, why is that?), hence the extreme measures you lament (such as the filibuster) are taken (or threatened) to thwart the process. (That is a good thing, until we have a supermajority that knows where it wants to go, what with our current polarization. This is also the same reason we have the 2/3 supermajority for ratifying treaties – does that “embarrass the operations of government?”). Some minor procedural shenanigans are inevitable in any system. Since the judiciary is not independent as intended (and detailed in no. 78), but rather partisan (for constitutional/philosophical and practical reasons, etc.) it becomes very very important to get somebody on your side.

And further, simple majority rule that is unjust and factious is equally “embarrass[ing]” as anything that “moves away from that” to “the operations of government”.

The whole purpose of giving the Senate the advise and consent power is so they can restrain the President. They are, of course, accountable for their exercise of that power, just as they are accountable for the exercise of all powers.

Agreed.

* * *

I think all of this filibuster talk is a little too healthcare coincidental, to be honest. I’ll take your word that you hated it since law school.

If the Reps. filibuster, the Dems. lose nothing; if the Reps. don’t filibuster, then the Dems. are precluded from doing so. And I’m sure we can trust that the Dems. would abide by the agreement down the road.

Allan Walstad: Once patently unconstitutional programs like Social Security were allowed to stand, it was inevitable that the courts would become just another political battleground.It’s no longer about enforcing the Constitution, it’s about enabling one or another political agenda.

Remind me about the facts of Marbury v. Madison. It predates Social Security a little.

While it is certainly true that I read the NY Times, it has been my position since law school that the filibuster was unconstitutional. (I first examined the issue when Republicans suggested ending the filibuster for judicial nominees.)

As for what issues of the Federalist are most relevant, Federalist 78, by its own terms, is not very relevant to the issue of nominations. As the Federalist 78 says:

As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

So, if you are curious about the logic of vesting the power of nomination in the President and the power of confirmation of the Senate, you are better off reading Federalist 76 and Federalist 77.

You will note that neither Federalist 76 or Federalist 77 say that the Senate should defer to the President, although it does suggest that the Senate will be held accountable for decisions to reject nominees. From the Federalist 77:

Let us take a view of the converse of the proposition: “the Senate would influence the Executive.” As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate.

The whole purpose of giving the Senate the advise and consent power is so they can restrain the President. They are, of course, accountable for their exercise of that power, just as they are accountable for the exercise of all powers.

Once again, the most relevant portion of the Federalist papers is the one I quoted in Federalist 75. The Senate was intended to proceed by majority vote. Moving away from that has “embarrassed the operations of government,” just as Hamilton predicted. The Articles of Confederation failed in large part because of super majorities were required to raise revenue. As soon as you move away from majority vote within an institution, you are giving the minority as much power as the majority and you are asking for deadlock, because the majority will have a tendency to think that either we should proceed without giving the minority practically everything it wants. Alternatively, you are subjecting the will of the majority to the minority, because the majority will tend to be the party that is suggesting movement away from the status quo, while the minority will tend to be happy to create paralysis in the hope that it will become the new majority and be able to implement policy in the future that better reflects is preferences.

So, yes, the problem is absolutely the filibuster. As long as that vile institution is in place, you can expect the Senate to continue embarrassing the operations of government. But, don’t blame the individual Senators for playing by the rules as they exist. Instead, blame them for not changing the rules in accordance with the plan in our Constitution. They think they know better, but the Founders experienced first hand what happens when you move away from majority rule when they adopted the Articles of Confederation. Finally, it should be noted that it took near disaster to move away from the Articles of Confederation. It probably will take something similar for our Senate to realize that the plan adopted by our Constitution is better than the unconstitutional rules they have put in place, in their inferior wisdom.

I remain mystified by the positively Byzantine rules of the House and Senate. Every time I try to get my arms about some procedural matter related to a bill, I am sickened by the roadblocks to good government that seem to have been created for the express purpose of sustaining political influence.

That having been said, and agreeing that requiring a filibuster-proof majority for Senate action creates a constitutionally dubious hurdle, I question the wisdom or utility of permitting “advice and consent” to morph into a run on Executive power. (I have as visceral a response to Presidents who act as though they are “chief legislators.”)

This does not, for the record, strike me as some kind of “ancestor worship” as a commentor above charged. I recognize that the Constitution has moved, both by the official amendment process, and judicial fiat from its original meaning on a number of issues. However, it is the structure of the Constitution that seems most durable and critical… almost more so than the rights matters which are more malleable.

If I am right about this point, then we should all be terribly concerned about the breakdown of the Separation of Powers.

http://www.nytimes.com/2010/01/11/opinion/11geoghegan.html?pagewanted=1

Furthermore, the relevant Hamiltonian passage(s) come not from The Federalist no. 75, but from The Federalist no. 78. I won’t quote the whole thing, but it is far more appropos to the problem of the politicized judiciary we are struggling with here.

http://www.constitution.org/fed/federa78.htm

The problem here isn’t the filibuster….

I think it is obvious to any intelligent human that the text of the Constitution is utterly silent as to whether the Senate may consider ideology as well as qualifications in discharging its advice and consent responsibilities. I am not suggesting that the Constitution mandates that ideology be considered. To the extent my opponent in the debate was suggesting that the Constitution forbids the consideration of ideology, it is he and not I who is guilty of doing as you describe, but I don’t necessarily take his comments that way.

You want to blame the people who serve in the Senate. Yes, Democrats and Republicans do love to play the blame game, because they hope it will be politically advantageous for their side and politically harmful for the other side. But look, you can’t really blame a Senator from either party for obstructing a judicial nominee whom they think will have a negative impact on the law.

There is a reason that Alexander Hamilton wrote the following over 200 years ago in 1788:

[A]ll provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority.

Notice, Hamilton says it is the “provisions” that are the problem that embarrass the operations of government. He does not blame either the majority for trying to implement policies that they think are good nor the minority for trying to obstruct policies that they think are bad.

You can hardly blame Republicans for obstructing judicial nominees with whom they disagree. As long as their disagreement with the nominee is in good faith (or they wish to extract concessions on another policy for which they advocate in good faith) they cannot be blamed as individuals for obstructing.

The problem is with the rules and those who think they are wiser than the Founders who experienced first hand how lack of majority rule tended to embarrass the operations of government under the Article of Confederation.

If we should block Bork, we should block an “almost Bork”.
If we should block an “almost Bork”, we should block an “almost almost Bork”.
If we should block an “almost almost Bork”, we should block an “almost almost almost Bork”.

With respect,it is precisely the kind of thinking that leads to statements like “both sides should have the right to block bona fide extremists like Bork” that sustains this problem.

Although since the method used to block Bork was to persuade a majority of the Senate to vote against him, I don’t see a problem there. The Senate isn’t supposed be a rubber stamp.

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .

There is no indication how deferential the “Advice and Consent” should be. One could fairly read that as leaving it to the discretion of the Senate.

That would in turn vary with respect to the details of the job: how important it is, how much tenure, etc. If someone is being appointed Dog-Catcher-In-Chief, one would think that might require less Senate scrutiny than Secty of Defense.

(A similar reading applies to the due process clause. The amount of process that is “due” varies as to the seriousness of what is at issue. There are more procedural protections for cases involving felonies than for misdemeanors, and more in criminal cases than civil cases.)

Of course different people have different views of what “extreme” means. That’s why everyone gets a vote. The Framers most likely knew what they were doing when they assigned the duty of advice and consent to a political body. But in any event, I’m simply not on board with your brand of ancestor worship, and I think the Framers might even find it creepy to see the extent to which some people actively desire to be ruled by their dead hand.

Is Justice Scalia “extreme?” Judging the reaction of my Con Law law school profs, the answer must be “yes.” Clearly though, his writing resonates with a significant number of law students and attorneys.

Further, do we judge “extreme” by what lawyers think of decisions, by what advocacy groups categorize judges and justices as, by public opinion? What of the decisions themselves, do we run out of town on a rail every judge who stands on a novel approach to law while proclaiming that the law evolves by precisely those stands?

Should we instead look to the judge’s past associations? If so, what do we make of Justice Black’s membershi in the KKK? Is his jurisprudence entirely undone by his past membership in that most extreme of organizations?

I’m sorry Steve, but I just don’t think the Framers intended our Senate to use the seating of a nominee as a political football. “Elections have their consequences” and a “President gets his/her nominees.”

Finally, the distinction between nominees that survive a change in administrations and those that serve at the will of the President doesn’t stand up to any kind of Constitutional scrutiny – however reasonable it may sound. Con Law cannot be about what we think reasonable now, it can only be about what was intended by the Framers or adopted by the Republic since then. It is not prospective – divining solutions and then reading them into the constitution. Con Law looks back, not forward.

Anything else is a farce.

There is a difference between a presidential appointment with a term limit (think Sec Treas or Sec Def), a presidential appointment that spans adninistrations (think FBI Director, Fed Chair), and a lifetime appointment.

The first is “The President’s Man”. The second is to limit the influence of the appointee over the president. The third is more going to the “Good of the Country”.

This seems to me like a sensible breakdown.

That’s fine. I read it differently, though. I think you can have deference while still leaving room to reject anyone at the ideological extremes.

The first is “The President’s Man”. The second is to limit the influence of the appointee over the president. The third is more going to the “Good of the Country”.

But then again, I’m naieve.

With respect,it is precisely the kind of thinking that leads to statements like “both sides should have the right to block bona fide extremists like Bork” that sustains this problem.

My reading of our Constitution supports the notion that a President “gets his nominees” unless the nominee is genuinely not qualified. The analysis should be something darn close to a a purely technical determination. For example, judicial nominees should be admitted to practice law, have no disqualifying criminal history, be physically and mentally sound, and so forth. To be frank, the grounds for voting down a President’s nominees ought to be no more stringent than those used to impeach.

I am a socially and economically conservative person but President Obama is entitled to far lefty judges and Secretaries and what not. Denying a President his nominees is as damaging to our Republic as Executive usurpation of Legislative Powers.

Would that all of our elected and appointed officials knew and respected our Constitution.

Allan Walstad: Once patently unconstitutional programs like Social Security were allowed to stand, it was inevitable that the courts would become just another political battleground. It’s no longer about enforcing the Constitution, it’s about enabling one or another political agenda. The pols appoint the judges who judge the laws. The chances of someone making it very far who would actually, consistently enforce Constitutional limits on the feds is virtually nil. Dear Lord, the collectivists missed erasing 2A from the Bill of Rights by only one SC vote.

(emphasis mine).

Once again Mr. Walstad, you are correct.

[Sen. (thankfully not judge) Sessions]: For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

That you ever sink as low as 60 votes for a nomination shows a deeper pathology.

Cheers,

“Blame”? “Congratulate” is a better word.

Allan Walstad: Once patently unconstitutional programs like Social Security were allowed to stand, it was inevitable that the courts would become just another political battleground.

Quite true. Nowadays it’s all just for show.

That would require Harry Reid growing a pair of testicles. They should invoke cloture any time a Senator puts a hold on a nomination for any reason not having to do with the nominee.