« Matt Bai's George Wallace Values? | Main | Someone Else Said It Better »

April 24, 2005


I want to ask you about you DKos diary " Losing the filibuster not so bad? Think again."

The Diary makes it sound like the filibuster would be lost in total...isn't the proposed "court packing" option targeting only the ability to filibuster judicial nominations?

Glad you asked, Al, because this comes up a lot. I've answered it a lot, too, which is maybe a good lesson for all of us in the value of repeating the message, even when you think your audience might be ready to kill themselves rather than hear it again. There's always somebody who's hearing it for the first time. You're a very active DKos poster, and I still just haven't managed to get this in front of you.

This ties in nicely with the current mini-flap over what to call the nuclear option, or at least the part of that flap that centers around who called it that first and why. It's time to forget all that crap about the nuclear option being nuclear because of what Democrats will do in response. The nuclear option is nuclear because it's unstoppable, and no rules, no traditions, no precedents, no customs -- nothing can stand in its way. It's a maneuver capable of simply obliterating anything a 51 vote majority considers inconvenient, for as much time as it's considered inconvenient.

So while Frist and the nucleo-cons swear up and down that they're only interested in eliminating the filibuster on judicial nominations, the only thing you have to cling to is... Frist's word. Will you take that? Would you take his word on a used car deal? How about the Constitution, then?

The nuclear option, powerful as it is, has never been ratified in any real world scenario. It's often threatened, but never used. Once the door is opened, however, what do you think Bill Frist and his ilk would do if they discovered that their ultimate weapon worked, and they could achieve anything they could muster 51 votes for, no matter what the Senate rules said?

I'll help you imagine it. Or rather, I'll let Louise Slaughter help you imagine it. The ability to change the rules at will makes the Senate no different from the House, where every piece of business that comes to the floor comes under its own custom-designed rule. Sometimes amendments are allowed, sometimes not. Sometimes there are 10 hours of debate, sometimes one. Sometimes you can raise a point of order when something in the bill is against the standing House rules, sometimes you can't. Slaughter's voluminous report (warning: 147 page PDF) chronicles the abuse of House rules in just such a fashion by a Republican majority that came to power on the promise to end such abuse.

So the question is, do you think that Senate Republicans (many of whom got their start in the very same GOP revolution gone bad in the House) are going to be better behaved and more trustworthy with their new ultimate weapon?

The nuclear option is as easily applied tomorrow to legislative filibusters as it is to judicial filibusters today. You just change the words when you make your point of order to the chair. And if you get 51 votes, it's done. And if Democrats annoy you with procedural gimmickry in retaliation, 51 votes can eliminate those, too.

Here's an intermediate step to watch for. Senate Republicans swear this is only about judges. But they say it's about judges because there's supposedly a constitutional duty to have an up-or-down vote on a presidential nomination, because that's what they claim "advice and consent" means. When, or perhaps if, John Bolton's nomination comes to the floor, it's likely to garner significant opposition, and maybe even a filibuster. His nomination requires the same "advice and consent" of the Senate, but he's not a judge. What, then, will separate the Senate's supposed constitutional obligation to vote on judges from the same with respect to Bolton? Nothing. But if the administration wants that nomination to go through badly enough, and the Senate Republicans agree to comply, then you can expect to see some nuclear option creep. "Sure," they'll say, "Bolton's not a judge. But the 'advice and consent' clause says we have to vote, just like on judges." And then next time, the justification will be another one-off. And another, and another, and another. Until they just abandon the whole pretext.

"I think it says quite enough about Pickering's
activism that he's more than happy to jump into
a fray most other federal judges would insist
that constitutional jurisprudence demands they
stay out of."

It also says something about the correctness of the Democrats decision to block his nomination and the incorrectness of Bush's decision to give him a a recess appointment.

Let me try to explain it a little differently. Right now, there is a very clear Senate rule that says you need 60 votes to end debate, and 67 votes if what you're debating is a rule change.

So the Republicans can't simply change the rules - they would need 67 votes to stop a filibuster on a rule change.

So instead, they will do an end run around the rule by seeking a "parliamentary ruling." When the Democrats filibuster a judicial nominee, they will apply to the President of the Senate for a ruling: "Mr. President, I seek a ruling that the 60-vote requirement is unconstitutional in the case of judicial nominees." And the President of the Senate, because his name is Dick Cheney, will say, "You know what, you're absolutely right."

Of course, there's nothing in the Constitution that says any such thing - there's not even a good argument for it, in my lawyerly opinion. Which is why Kagro X is correct that the precedent doesn't end here. You could say "Mr. President, I seek a ruling that the 60-vote requirement is unconstitutional in the case of cheese subsidies." As long as someone is sitting in that chair who is willing to go along with your little game, you can unwrite the rules at will by a simple majority vote.

I am glad you brought up the political question doctrine. The Right these days relies a heck of a lot on nonjusticiability to assert unsupportable legal interpretations. Their whole position as to why "laws and treaties don't bind the President in wartime" was based on the hypothesis that no court would find such issues reviewable. They still contend that the signed-and-ratified Convention Against Torture doesn't bind the CIA or restrict the President's power to render suspects to countries that practice torture (specifically prohibited by the treaty).

If Boyden Gray had to present his "filibuster is unconstitutional" argument to a court, he'd lose. And he knows it. He makes arguments that he knows are BS because he knows they will never be ruled upon except by a political body that will do whatever the Republicans want them to do. Of course, if the issues were found to be justiciable, maybe the right wing would just turn around and bash the judges who made such a holding.

The comments to this entry are closed.

Where We Met

Blog powered by Typepad