Filibuster Deal:

"Filibuster Deal Puts Democrats In a Bind: Pact May Hinder Efforts to Block High Court Nominee":

The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.

Seriously, does anyone actually believe any of the 14 Senators are going to feel bound in any way by the deal? It has been obvious from the beginning that "extraordinary circumstances" is an empty term, and there is little doubt that any of the filibuster compromisers could easily cook up some reason to find "extraordinary circumstances."

As for whether "philosophical views" constitute "extraordinary circumstances," remember that those who attacked Bork simply redefined their philosophical objections as questions about his temperament. And Estrada was filibustered because of his unwillingness to respond to unreasonable and overreaching document requests.

The only silver lining in all this is that the filibuster deal itself was an unconstitutional abdication of the Senate's advice and consent obligation in the first place, so if this provides the triggering event for its demise, so much the better.

Related Posts (on one page):

  1. Filibuster Deal:
  2. More on Filibuster Deal Fall-Out:
frank cross (mail):
I agree that the filibuster deal is pretty meaningless in what happens now. Politically, the Dems won't be able to get away with filibustering a perceived moderate but may well filibuster a perceived extremist.

I have never been able to comprehend, though, the argument that a filibuster is a constitutional abdication of duty. It seems as if a filibuster is just one method of not consenting. And John McGinnis makes a good argument for why the opportunity for filibuster of USSC justices seems like wise policy.
7.4.2005 5:32pm
John Q (mail):
The only silver lining in all this is that the filibuster deal itself was an unconstitutional abdication of the Senate's advice and consent obligation in the first place,....

I fail to see what's unconstitutional about a group of senators participating in deciding how that body of elected government will operate. The deal that was reached, and I agree that it will be tested soon enough, is eminently lawful and entirely proper. I disagree entirely with the argument that there is anything unlawful about Senate filibusters against presidential nominations. I just don't see it.
7.4.2005 6:12pm
Adam (mail):
If the Democratic Senators are perceived by the Republicans as acting in bad faith regarding "extraordinary circumstances", the Republicans still have the threatened nuclear option, and so the Democratic Senators truly are bound to make a convincing case that any filibuster is warranted under extraordinary circumstances.
7.4.2005 7:20pm
CrazyTrain (mail):
Does anyone not doubt that Todd is a complete shill for extremist republicans? I mean if Bush nom'd someone as moderate as breyer or consulted with the minority party a la clinton there'd be no problem. Prado for instance. But Todd is settin it up so the dems look bad for opposin anyone Bush nominates. . . . . without acknowledin that dems would be happy witTh true moserate ala Breyer. . . . Todd, you should stick to bankruptcy shillin'--youre out if your leaue here.
7.4.2005 10:35pm
Drew (mail):
I'm unclear as to why the fillibuster deal was an abdication of the advise and consent role. Are you saying it was an abdication by republicans (allowing some justices to be blocked permanently), or by democrats (allowing some justices through that they otherwise could have and should have blocked)? If the former would you argue that if the senate had agreed that the consent part of the constution meant that 60 senators had to consent would this be unconstitutional? If you would not so argue then how does the current situation differ. If you would so argue on what basis do you conclude that a simple majority is required by the constitution?
7.5.2005 12:22am
Wince and Nod (mail) (www):
Extremist is a meaningless word in politics, since everyone's political position is extreme compared to someone else.

Say what everybody means: if you are a liberal, an extremist is someone who would overturn Roe v. Wade. If you are a conservative, an extremist is someone who would not overturn Roe v. Wade. There is no other issue about which so many people care enough to fight like this.

7.5.2005 12:57am
Greedy Clerk (mail):
<i>I have never been able to comprehend, though, the argument that a filibuster is a constitutional abdication of duty.</i><P>That's because there is no such understandable argument. No matter how many times it is repeated at Clownhall and at NR, it doesn't make it so. And Todd doesn't even try to justify it here either. If filibusters are unconstitutional abdication of the advice and consent function then so were the blue slips, and holds being used during the Clinton days to deny scores of nominees their "up-or-down" votes (many more than have been denied under Bush). Of course, we never saw Todd arguing back then that this was a "constitutional abdication" by the Republican Senate. . . . .
7.5.2005 1:06am
TL (mail):
Professor Zywicki clearly enabled comments to see the ire of all of you constitutional law scholars. As a humble student myself, I have a problem with the following: Advice and consent to me means "recommendation regarding a decision or course of conduct" and "compliance in or approval of what is done or proposed by another." How do any of you legal scholars read those Webster's definitions in such a way as to believe that when the President needs 51% of the Senate to agree to his nominees, that it is ok for 41% of those Senators to fillibuster? Republicans, Democrats, who cares? The fillibuster sounds definitionally like a cheap political trick when applied in this way. And that is why the constitutional argument exists. Just read it! (The Constitution, and the numbers both) Again, Professor Zywicki makes a fine numbers argument, as far as my abacus reveals. Consent = 51 Senators. Advice = 51 Senators.
7.5.2005 12:35pm
frankcross (mail):
TL, that's not what the Constitution says. The Constitution says that a judge can take office after receiving the advice and consent of the Senate. It doesn't mandate that the Senate give consent. If the Senate fails to consent, the judge does not take office.

How about an analogy. My child is given a consent form to participate in an activity. I am not obligated to turn it back in and say "no." I can delay indefinitely or simply not take any action, and consent is withheld, so my child does not participate (the judge does not take office).
7.5.2005 2:57pm
TL (mail):
Frank, how about another analogy. 100 Children take consent forms home to their parents saying that you can advise and consent to this school taking a field trip, or you can vote it down. We need a majority of parents to advise and consent with an agreement or disagreement. 41 Parents decide that since they can't get a total of 51 parents to vote against the field trip, they will just boycott the process entirely to put heat on the planner of the field trip. The Framers doubtfully considered the fillibuster legitimate in this application. Like the 41 parents, those that fillibuster b/c the consensus is "yay," rather than "nay," are using tricks.
7.5.2005 3:54pm
frankcross (mail):
Well, your analogy misses the point, I think. I am not claiming that the filibuster is constitutionally required. The true analogy would be that the PTA had a rule saying that a supermajority of 60 votes was required to approve a field trip. This is a preexisting policy, like the filibuster rule. I can see no reason why the PTA creating such a rule would be "unconstitutional" or why a minority of 41 might choose to block the trip.

I am not saying that the 51 parents cannot override the rule through their own nuclear option. I agree they can. I'm just saying that the PTA group should have the choice of requiring a supermajority for any field trip, if that is the rule that they wish.
7.5.2005 4:17pm
It's clearly a textual thing for some. No supermajority is required to appt judges. Some think it is in poor taste to use the filli in this way (and I believe the Founders would back this view--dragging in the Con Law). It fosters politics where we have to hear about "nuclear" options and all that. C'mon, the Cold War is over. Take your advice and consent role seriously. Don't pout that you don't have the votes. Don't shut down government. This is my view whether Dems or the GOP are doing the pouting.
7.5.2005 5:52pm
frank cross (mail):
Perhaps, but pouting is not unconstitutional. Nor does the Constitution prohibit filibusters. It doesn't require a supermajority requirement, nor does it prohibit one.
7.5.2005 6:55pm
Wince and Nod (mail) (www):
I think the key is that while the Constitution does not prohibit filibusters it does not protect them from being overruled by a simple majority. Futhermore, this applies to all filibusters, not just judicial appointments.

Our President, Representatives and Senators have a Constitutional duty to promote the general welfare and to work within the Constitution. They should consciously avoid signing, enforcing and passing unconstitutional laws.

I do not think the phrase "the filibuster deal itself was an unconstitutional abdication of the Senate's advice and consent obligation in the first place" is unjustifable, but I certainly don't think we have the political will to do anything more than complain about it. After all, we all fail in our duty to abide by the Constitution at some time or another.

7.5.2005 7:36pm
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