solaris_219 (![[info]](http://l-stat.livejournal.com/img/userinfo.gif){kind=small} solaris_219) wrote,@ 2005-05-03 16:00:00 |
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Judicial filibusters - my take
I've commented many times in mostly every non-LJ blog I read, except my own, on the filibuster business, so before they actually go ahead and do it - and they are going to go ahead and do it, since both sides have now painted themselves into a rhetorical corner from which there is no escape - let me just sum up here my position on ending the filibuster on judicial nominations by the so-called "constitutional" option.
Just before I begin, there is an excellent rebuttal of the Democrat position (i.e., that the filibuster is a well-established device for blocking judicial nominees) that has been posted by Jeffrey D. King, who transcribed the Scalia speech I posted earlier today. Thanks to Jeffrey for finally prodding me into getting this post collated from my various other, and less structured, ramblings.
I
My position, in general, is this. I do not object in particular to the nominees being proposed. Nor do I object to the principle that every nominee should get an up-or-down vote. Therefore, my remarks in this should not be construed as to support the Democrats on this matter. Where I do dissent, however, is the idea that the filibuster on judicial nominees is unconstitutional. As I previously posted regarding Roper v. Simmons, something can be a terrible idea, or in this case, undemocratic, and yet still be constitutional. The filibuster is such a device.
Let us dispense with two notions where I simply cannot agree with the leadership.
II
The first is the idea that the filibuster is unconstitutional.
The Constitution allows each House of Congress to adopt its own Rules. Art. 1, §5, Cl. 2. Each time a new Congress convenes, each House is free to adopt, discard or amend the existing rules. The House, which is an entirely new body in each Congress, does this explicitly by voting on a new set of rules; in the 109th Congress, it did precisely that. Congressional Record, 1/4/2005, p. H7. The Senate, by contrast, is a continuing body; the rules of the previous body remain in force by unanimous consent at the convening of the new session, unless challenged. Senate Rule V, §2. They were not so challenged. Q.v., Dick Morris, The Hill, 2/2/2005. Once those rules have been accepted by the Senate, they are binding until either a) a new session begins, or b) they are amended as provided within the standing rules.
Now, it's been argued that, when the Senate is in "executive business" - i.e., confirming nominees - that it functions under different rules. Such an argument is triffling. The Constitution makes no such differentiation; the Senate rules make no such differention. There is no such differentiation. The Senate rules are as they provide for them to be, as per the Constitution; the rights and perogatives of the Congress are not merely spelled out in Article 1, but throughout the Constitution and its amendments. Nobody, for example, has attempted to contend that the Senate is governed by different rules and procedures when considering legislation determinging the manner in which the public acts or record of a given state are proved to other states. Art. 4, §1, Cl. 2. The Constitution's definitive - and thusfar only - statement on the rules that govern Congressional consideration of any business placed before it can be found at Art. 1, §5, Cl. 2.
Perhaps a more immediately watertight argument - and this is the one most frequently deployed - is, "The lack of Constitutionality of the filibuster in the debate on nominees is based upon the fact that the Constitution does not spell out super majority requirements for that function". This argument is intriguing, but fallacious; the mere fact that the Constitution does not explicitly require a supermajority proves nothing. True, it could be argued that the constitution implies a simple majority - but it does not say as much, and indeed, the Constitution explicitly requires the Senate to give its consent to nominees, and it explicitly gives the Senate permission to set its own rules as to how to consider its business. Ipso facto, the explicit always superceding the arguably implicit, the filibuster is neither constitutional nor unconstitutional, but rather, a creature of whatever rules each Senate chooses to adopt. If the Senate wishes to amend its rules during a Congress - or adopt new rules at the start of a new Congress - it is free to do so, as provided by the rules of the Senate.
Furthermore, it is important to evaluate the Constitution's language in context, and context provides a further hurdle for the notion that the Framers intended to micromanage the rules of procedings in either chamber of Congress:
The problem is that, in order to amend the rules, Sen. Frist needs 60 votes (q.v. Senate Rule XXII, §2, para 2) - which he doesn't have. Therefore, the proposal was made - I believe it's credited to Sen. Stevens (R-AK) - to have the Vice-President make a ruling on the constitutionality of a filibuster, which could be upheld by a simple majority, which Sen. Frist may have. I could be pursuaded to vote to change the Senate rules to proscribe filibusters on Judicial nominees; I could be pursuaded to vote to vote for cloture on the inevitably-ensuing filibuster on changing the rules on filibustering judicial nominees. But where I am not convinced is the argument that the filibuster is unconstitutional, and thus if I were a member of the US Senate next week, I'm sorry to say I would join with the minority in opposing a ruling that it is unconstitutional
III
The second is that the filibuster is wrong "because it thwarts the will of the majority".
Neither the explicit text, nor any reasonable reading of the intentions of the Framers, can lead to the conclusion that the Framers sought to create a government in which the will of the majority was excercised without constraint. To conclude that the filibuster is at aberrance with the intent of the Framers "because it frustrates the will of the majority" is little short of absurd. If the Framers had been so concerned about majority rule, they would have not created the Senate in the first place; their express intent in creating a body with the characteristics of the Senate - most saliently, a body chosen per state, without respect to population thereof, and with only one third elected at any one time - was precisely to DEFEAT the will of a transient majority.
Furthermore, one has to question what, in any event, constitutes a majority, where a body with the characteristics of the United States Senate is concerned. As noted above, the Framers specifically created the Senate as a body where each state had an equal vote, regardless of population. It is perhaps worth noting that, while the GOP controls a majority of the seats in the Senate, these seats do not represent that majority of the population, that group to whom Sen. Frist claims to be deferring. 16 states, with a combined population of 117,657,044, send two Democrats to the Senate; 21 states, with a combined population of 112,828,577, send two Republicans to the Senate. 14 states send a split delegation, so for the sake of argument, we will divide the population of each split delegation state in half, and add that count to the population headcounts of those states sending a united delegation. By that math, the Senate's 45 Democrats represent 142,824,157 people, while the Senate's 55 Republicans represent 112,858,577. Does this matter? No - because the Senate is not, and never has been, a majoritarian body. Which is precisely the point.
IV
I am a Republican who really, really likes the US Constitutional order; I don't want to mess around with it simply because it suits my immediate cause. America is not, was not created as, and never will be, a strictly majoritarian democracy - it is a Republic, in which majority rule is tempered with minority rights, as provided by a written Constitution, the meaning of which does not change other than by its amendment.
I see no reasonable, originalist interpretation of the Constitution that is consistent with Senator Frist's nuclear option - and as such we must call it, because, Q.E.D., it most certainly is not a "constitutional" option - and thus I must respectfully dissent.
I've commented many times in mostly every non-LJ blog I read, except my own, on the filibuster business, so before they actually go ahead and do it - and they are going to go ahead and do it, since both sides have now painted themselves into a rhetorical corner from which there is no escape - let me just sum up here my position on ending the filibuster on judicial nominations by the so-called "constitutional" option.
Just before I begin, there is an excellent rebuttal of the Democrat position (i.e., that the filibuster is a well-established device for blocking judicial nominees) that has been posted by Jeffrey D. King, who transcribed the Scalia speech I posted earlier today. Thanks to Jeffrey for finally prodding me into getting this post collated from my various other, and less structured, ramblings.
My position, in general, is this. I do not object in particular to the nominees being proposed. Nor do I object to the principle that every nominee should get an up-or-down vote. Therefore, my remarks in this should not be construed as to support the Democrats on this matter. Where I do dissent, however, is the idea that the filibuster on judicial nominees is unconstitutional. As I previously posted regarding Roper v. Simmons, something can be a terrible idea, or in this case, undemocratic, and yet still be constitutional. The filibuster is such a device.
Let us dispense with two notions where I simply cannot agree with the leadership.
The first is the idea that the filibuster is unconstitutional.
The Constitution allows each House of Congress to adopt its own Rules. Art. 1, §5, Cl. 2. Each time a new Congress convenes, each House is free to adopt, discard or amend the existing rules. The House, which is an entirely new body in each Congress, does this explicitly by voting on a new set of rules; in the 109th Congress, it did precisely that. Congressional Record, 1/4/2005, p. H7. The Senate, by contrast, is a continuing body; the rules of the previous body remain in force by unanimous consent at the convening of the new session, unless challenged. Senate Rule V, §2. They were not so challenged. Q.v., Dick Morris, The Hill, 2/2/2005. Once those rules have been accepted by the Senate, they are binding until either a) a new session begins, or b) they are amended as provided within the standing rules.
Now, it's been argued that, when the Senate is in "executive business" - i.e., confirming nominees - that it functions under different rules. Such an argument is triffling. The Constitution makes no such differentiation; the Senate rules make no such differention. There is no such differentiation. The Senate rules are as they provide for them to be, as per the Constitution; the rights and perogatives of the Congress are not merely spelled out in Article 1, but throughout the Constitution and its amendments. Nobody, for example, has attempted to contend that the Senate is governed by different rules and procedures when considering legislation determinging the manner in which the public acts or record of a given state are proved to other states. Art. 4, §1, Cl. 2. The Constitution's definitive - and thusfar only - statement on the rules that govern Congressional consideration of any business placed before it can be found at Art. 1, §5, Cl. 2.
Perhaps a more immediately watertight argument - and this is the one most frequently deployed - is, "The lack of Constitutionality of the filibuster in the debate on nominees is based upon the fact that the Constitution does not spell out super majority requirements for that function". This argument is intriguing, but fallacious; the mere fact that the Constitution does not explicitly require a supermajority proves nothing. True, it could be argued that the constitution implies a simple majority - but it does not say as much, and indeed, the Constitution explicitly requires the Senate to give its consent to nominees, and it explicitly gives the Senate permission to set its own rules as to how to consider its business. Ipso facto, the explicit always superceding the arguably implicit, the filibuster is neither constitutional nor unconstitutional, but rather, a creature of whatever rules each Senate chooses to adopt. If the Senate wishes to amend its rules during a Congress - or adopt new rules at the start of a new Congress - it is free to do so, as provided by the rules of the Senate.
Furthermore, it is important to evaluate the Constitution's language in context, and context provides a further hurdle for the notion that the Framers intended to micromanage the rules of procedings in either chamber of Congress:
Before the Constitution was ratified, the United States was governed by the Articles of Confederation. The Articles established a Congress composed of representatives from each of the states, with each state having one vote. Significantly, the Articles imposed a supermajority rule on Congress's exercise of many of its powers.
The Articles' use of a supermajority rule argues strongly against [the] claim that the Framers used "passed" to mean "passed by majority vote." The Framers would have expected the Constitution to be interpreted against the backdrop of the Articles. Because the Articles employed a supermajority rule, the Framers would not have simply assumed that everyone would understand that legislatures always pass bills by majority vote. Thus, if the Framers had intended to mandate majority voting, they would have done so explicitly.(McGinnis & Rappaport, The Rights of Legislators and the Wrongs of Interpretation: a Further Defense of the Constitutionality of Legislative Supermajority Rules; 47 Duke L.J. 327)
The problem is that, in order to amend the rules, Sen. Frist needs 60 votes (q.v. Senate Rule XXII, §2, para 2) - which he doesn't have. Therefore, the proposal was made - I believe it's credited to Sen. Stevens (R-AK) - to have the Vice-President make a ruling on the constitutionality of a filibuster, which could be upheld by a simple majority, which Sen. Frist may have. I could be pursuaded to vote to change the Senate rules to proscribe filibusters on Judicial nominees; I could be pursuaded to vote to vote for cloture on the inevitably-ensuing filibuster on changing the rules on filibustering judicial nominees. But where I am not convinced is the argument that the filibuster is unconstitutional, and thus if I were a member of the US Senate next week, I'm sorry to say I would join with the minority in opposing a ruling that it is unconstitutional
The second is that the filibuster is wrong "because it thwarts the will of the majority".
Neither the explicit text, nor any reasonable reading of the intentions of the Framers, can lead to the conclusion that the Framers sought to create a government in which the will of the majority was excercised without constraint. To conclude that the filibuster is at aberrance with the intent of the Framers "because it frustrates the will of the majority" is little short of absurd. If the Framers had been so concerned about majority rule, they would have not created the Senate in the first place; their express intent in creating a body with the characteristics of the Senate - most saliently, a body chosen per state, without respect to population thereof, and with only one third elected at any one time - was precisely to DEFEAT the will of a transient majority.
Furthermore, one has to question what, in any event, constitutes a majority, where a body with the characteristics of the United States Senate is concerned. As noted above, the Framers specifically created the Senate as a body where each state had an equal vote, regardless of population. It is perhaps worth noting that, while the GOP controls a majority of the seats in the Senate, these seats do not represent that majority of the population, that group to whom Sen. Frist claims to be deferring. 16 states, with a combined population of 117,657,044, send two Democrats to the Senate; 21 states, with a combined population of 112,828,577, send two Republicans to the Senate. 14 states send a split delegation, so for the sake of argument, we will divide the population of each split delegation state in half, and add that count to the population headcounts of those states sending a united delegation. By that math, the Senate's 45 Democrats represent 142,824,157 people, while the Senate's 55 Republicans represent 112,858,577. Does this matter? No - because the Senate is not, and never has been, a majoritarian body. Which is precisely the point.
I am a Republican who really, really likes the US Constitutional order; I don't want to mess around with it simply because it suits my immediate cause. America is not, was not created as, and never will be, a strictly majoritarian democracy - it is a Republic, in which majority rule is tempered with minority rights, as provided by a written Constitution, the meaning of which does not change other than by its amendment.
I see no reasonable, originalist interpretation of the Constitution that is consistent with Senator Frist's nuclear option - and as such we must call it, because, Q.E.D., it most certainly is not a "constitutional" option - and thus I must respectfully dissent.
