by Kagro X
Last time I only made it through part of page one of C. Boyden Gray's five page memo before having to give up for the day.
Picking up where we left off, I mentioned that Senator Frist will seek to get around having to wait for a new Congress by claiming that his unilateral refusal to acquiesce to the continuation of the cloture rules will give him standing to change that rule as if it were the beginning of a new Congress (see Part IV).
To begin with, I'm not entirely sure that this magical window should exist, even if only at the beginning of a new Congress. If the Senate is a continuing body (and possibly even if it's not), I don't see why its agreement to a set of rules that itself makes it difficult to change the rules is any less valid an exercise of the Art. I, sec. 5 powers it has than one that allows for such a window.
The Senate, everyone agrees, has the power to determine the rules of its proceedings. But apparently, I'm the only one who thinks it's enough that it has already done so.
For some reason, the scholars who believe in either the constitutional window that supposedly exists at the start of a new Congress or the prohibition against binding current Congresses by the "dead hand of the past" seem to think that the "continuing body" theory (see Part V) isn't enough to explain why a Senate that once passes its rules doesn't remain bound by them until they're affirmatively changed. I remain open to their argument, but on first impression it seems to me that the Senate has adopted admittedly stringent rules to govern changes in the rules, and therefore Senators who have since joined the body who may be of a different opinion will simply have to bide their time until they gather a caucus of supporters that can overcome those rules.
The argument that the current and future Senates cannot be bound by the actions of past Senates rests on the theory of "anti-entrenchment." In his testimony before the Senate Committee on Rules and Administration on June 5, 2003, William & Mary Law Professor Michael Gerhardt explained his take on the objection that Senate rules impermissibly entrench the fillibuster, and I'll let him take over for a moment:
The basic argument is that these rules allow a current Senate to deprive a future majority within the Senate to choose the rules including those governing the filibuster under which they prefer to operate.
This argument, too, is problematic. First, and most importantly, the Senate is a "continuous body." For good reason, the Senate has always viewed itself as a continuous body and has had a continuous practice not to reconstruct itself, like the House of Representatives, from scratch at the outset of every session. On three separate occasions, the Supreme Court has recognized the Senate as a distinctive political body in the constitutional scheme because it is continuous. [...] Thus, the unique structure of the Senate relieves it of any obligation, or necessity, to reconstitute itself anew in every congressional session. To the contrary, Rule V formalizes the Senate's longstanding, unswerving recognition of itself as a continuing body whose rules are already in effect at the outset of each session.
Moreover, the unique structure of the Senate as a continuing body explains the facts that, unlike the House, the Senate has standing rules and standing committees. The anti-entrenchment argument suggests the Senate lacks the authority to enact standing rules and to appoint standing committees.
Second, there is no constitutional directive against entrenchment the enactment of statutes or internal legislative rules that are binding against subsequent legislative actors in the same form. Just the opposite is true within the legislative process, in which entrenchment is commonplace. [...] Yet, no one argues questions the constitutionality of such policy enactments on entrenchment grounds.
The response that displacing a prior statute is easier than changing rules because of the different voting procedures misses the point. Either anti-entrenchment is a constitutional requirement, or it is not. If it is a requirement, then it requires foregoing or striking down any statute or rule that impedes a legislative majority from implementing its statutory or procedural preferences. [...] A final problem with the anti-entrenchment argument is that it depends on a loose rather than a strict interpretation of the text of the Constitution. Experts who advance this argument must claim support for it based largely on the silences of the Constitution and the constitutional convention and ratification debates. Anti-entrenchment traces its roots back to a belief that the framers had embraced anti-entrenchment so extensively that they assumed no current legislature may bind a future one and so felt no need to include any provision to that effect in the Constitution. That Virginia, prior to ratification, expressly included such a provision within one of its statutes suggests, however, that positive law had to provide for anti-entrenchment. The Virginia experience suggests at least some of the Framers knew that anti-entrenchment should be expressly guaranteed rather than left to legislative silence. It is surely an odd constitutional argument that depends on the silence of the constitutional and ratification debates. One would think that the silence of the constitutional text, coupled with the silence of the constitutional convention and ratification debates, would amount to nothing more than silence, i.e., nothing. Moreover, the text of the Constitution trumps any argument based on the Framers' silence. If this were not true, reliance on the text of the Constitution would be pointless, for the Framers' silence could be invoked on many questions that seem settled or barred by the plain language of the Constitution.
The anti-entrenchment theory, then, is at the root of the belief that the Senate may address its rules under general parliamentary procedure at the beginning of a new Congress. But what about what Frist is up to? It's one thing for anti-entrenchment scholars to support the idea that the idea that each manifestation of the Senate may determine the rules of its proceedings anew. But Frist, in effect, has decided that a new manifestation of the Senate arises when he changes his mind about whether or not he's content to let cloture rules lie undisturbed.
Getting back to Gray's memo, technically we haven't yet disposed of page one. But I think we can wrap it up pretty quickly with references to previous parts of this series. Gray goes on to insist that:
I believe the judicial filibuster violates the constitutional principle of Separation of Powers. The Constitution grants the Executive primary power over judicial appointments while granting the Senate, as a body – not partisan factions within it – a check via majority vote. By altering that standard, the Senate Democrats are, in effect, arrogating power to the Senate from the Executive. One analogy might be to the Executive's use of a line item veto – a power the Supreme Court has nullified because it unconstitutionally enhances the Executive's power relative to the Legislature.
First, the assertion that a separation of powers crisis can be avoided by striking down the filibuster on the theory that it interferes with presidential powers is addressed in Part VIII. I believe that Gray's method of avoiding one separation of powers crisis will merely create another. At least we have experience in dealing with the one he claims to identify. The alternative is not only a nightmare, but a new one that may create new rights that we have no idea how to deal with.
Second, there's his complaint that:
The Constitution grants the Executive primary power over judicial appointments while granting the Senate, as a body – not partisan factions within it – a check via majority vote. By altering that standard, the Senate Democrats are, in effect, arrogating power to the Senate from the Executive.
Here, I'll merely point out, in the strict constructionist fashion, that the Constitution's text does not actually limit the Senate's check on executive power in appointments to a "majority vote." The text says, "Advice and Consent." What that means is open to some debate, as I discuss in Parts VIII and IX. The text provides no actual guidance on what "consent" is, although by convention we understand it to be a majority vote on confirmation, though not necessarily on the motion to take up consideration of confirmation. But that also tells us what not-consent is -- that is, anything other than a majority vote on confirmation, including a refusal to report a nomination out of committee. It also takes no notice of what "advice" might mean, and how it might serve as a check against presidential power. As I have suggested, a president who nominates highly partisan candidates to judgeships might be "advised" to think again, when he finds his selections so unpalatable to some significant portion of the Senate (say... 40%?) that he is unable to exercise his appointment (not nomination!) powers.
That just about covers page one.