Footnotes on the Nuclear Option -- Part IV

by Kagro X

"Justice Sunday" was a little more depraved an exercise than I expected, even knowing the prominent part Bill Frist had agreed to play in it. What I didn't know was that before the official kickoff of the telecast, the assembled wingnut throng was addressed by Charles Pickering, Bush's recess appointment to the 5th Circuit, now retired.

The AP coverage has Pickering ruling from the pulpit:

A retired federal judge whose promotion to an appellate court was blocked by a Senate filibuster called the tactic unconstitutional and said it should be ended permanently if it is used again....

"The constitutional solution is the only option if there is another filibuster of a judicial nominee," Pickering said. "Why shouldn't the Constitution be followed?"

Pickering, who has withdrawn his nomination to the 5th U.S. Circuit Court of Appeals in New Orleans, said the Constitution requires a simple majority to approve or reject a nominee. Because a filibuster requires 60 votes to overcome, he said it is an unconstitutional barrier.

So, that poses an interesting question. Have any of the other nominees to the federal bench been so bold as to offer an opinion of the use of the filibuster against them?

My assumption is that they have not been so foolhardy, and that Pickering only feels free to do so now that he has withdrawn from consideration. If fact, you might have hoped before reading these articles that a federal judge, even a retired one, would have known better than to step into a trap like that, not only because the issue bears so directly on the process by which federal judges become federal judges (and therefore might be considered the political equivalent of commenting on a case in progress), but also because doing so is such a senseless departure from the well-established script for becoming a federal judge.

And there is, in fact, such a script. It was written in part as a "What not to do" primer based on the Bork nomination, and was later perfected in "How to" form by David Souter: that is, be pleasant and say nothing. That's something most readers could probably figure out for themselves, but if they were ever nominated to the federal bench, they wouldn't have to. Because I wasn't speaking metaphorically about that script. It really exists. And if you're a federal judicial nominee, the good folks at the Justice Department will show it to you on videotape.

But a better question than why Pickering would do this might be whether his views are of any consequence. Strictly speaking, of course, they're not. He's retired, for one thing. And for another, he wasn't actually rendering an opinion in a real case. Which is lucky for him, and for his nucleo-con compatriots, because if he were willing to render such an opinion, that could only mean that the questions of constitutionality posed by the nuclear option are actually justiciable, and therefore not purely political questions which the courts would opt to duck. Which would mean that Senate Democrats would have recourse to the courts in the aftermath of a nuclear event. Which would leave the nuclear tactics designed to root out and destroy activist judges in the hands of... those same judges.

Most actual federal judges, I think, would find the questions non-justiciable. I'm not an expert in the political question doctrine, but how the courts would approach the questions involved without either doing more damage or bringing down still more neo/theo-con wrath, I have no idea. But 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. Good riddance, I think, is the phrase I'm searching for.

Are there any other nominees who'd like to pick this ball up and run with it?

Comments

[Al Rodgers]

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?

[Kagro X]

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.

[Fred in Vermont]

"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.

[Steve]

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.

[Dilan Esper]

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.