Will on Filibusters - Considering a column and a battle to come.

National Review Online ^ | March 21, 2005, 8:42 a.m. | Mark R. Levin

[wcdukenfield]

In his Sunday column, George Will makes his most comprehensive argument yet against Senate Republicans' modifying the filibuster rule to prevent its use against judicial nominees. I respond to some of his major points below.

Will writes:

Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Of course, this begs the question. If a majority of the senators decide that they want to change one of their rules to prevent the filibustering of judicial candidates, then the Senate is, as Will puts it, "completing the staffing process that the president initiates." Nobody is denying the Senate's role, just what it's doing with that role, and its impact on presidential as well as senatorial powers.

Will writes:

Some conservatives say the Constitution's framers "knew what supermajorities they wanted" — the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings."

Actually, Will conflates two points here. The Constitution is a governing document that attempts to lay out the powers of the various branches and levels of government. It stands originalism and limited government on its head to argue that where the Constitution is silent, the federal government (including the Senate) is free to act. Will seems to have adopted Sen. Joe Biden's position, or worse. When Biden (D., Del.) was asked if he'd support Justice Antonin Scalia for Chief Justice, Biden responded that he could not, as Scalia doesn't believe in the Constitution's "unenumerated powers."

The Constitution is silent about a lot of things, such as abortion and same-sex marriage. To argue that its silence is not limiting assumes it's not limiting to any branch of the federal government, including the judiciary. In fact, the Constitution says very little about the power of the judiciary, and its silence has been used by judicial activists to set policy throughout our society. Here, the Senate minority's conduct is actually worse than exercising an "unenumerated power." It is affirmatively denying the full Senate the opportunity to exercise an enumerated power — its advice-and-consent function. If the majority party in the Senate does not wish to exercise that power, it's not compelled to do so. But if it does wish to exercise that power, which is the present case, then the majority can change the rule by which the minority is thwarting the majority, i.e., the filibuster rule.

As to the second point — that the Constitution's authorizing the Senate to set its own internal rules empowers the Senate to impose a supermajority requirement on itself — this has always seemed an odd argument to me. What would Will say, I wonder, if the Senate adopted rules that conflict with some explicit provision of the Constitution? If I follow his logic, the Senate's power to set its own rules, whatever the rules, is given as much weight as explicit constitutional provisions. In any event, if the Senate majority believes the minority's imposition of a supermajority violates the Constitution, and then acts to change the rule, in the end that's all that matters.

Will writes:

Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

There is certainly no requirement that the full Senate vote on any nominee. I suppose there's no requirement that the Senate conduct business of any kind. I don't know where this gets us. However, if the majority wants to exercise its constitutional authority, and is prevented by the minority, it seems obvious that the Senate majority is being denied the right to perform its constitutional function. It need not cooperate with the minority's political objective. That's the entire point. That's why the demands for modifying the filibuster rule. This is a right (or power) that belongs to the Senate majority, which speaks for the Senate.

Will writes:

Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms — separation of powers, bicameral legislature, etc. The filibuster is one such mechanism — an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

Some conservatives, like me, are more interested in discerning actual constitutional powers than arguing for "minority assertion." As Will writes, the Constitution explicitly provides for separation of powers, a bicameral legislature, etc. It is a document of enumerated authorities. The Framers' main concern was with the concentration of power in the hands of a few people or entities. Hence, divided government, in which each branch jealously guards its own power. The filibuster has nothing to do with this. Moreover, while the filibuster is used by a minority to slow or thwart a majority, Will's argument assumes that the minority is the group attempting to "slow or stop government." In fact, it is the minority, as the Senate is presently configured, which seeks to expand the power of government by preventing the confirmation of originalist judicial candidates. And, when instituted by the current minority in the legislative context, it would be used to prevent spending and tax cuts, both of which limit government.

Indeed, throughout this debate, the advocates of the filibuster have succeeded in portraying it as a great deliberative tool that has been used for good — such as stopping a misguided majority. My guess is it has been used for good and bad, but I've yet to see its defenders present any careful and comprehensive analysis of its use over history. Therefore, we need not accept Will's contention on face value. I do recall the filibuster was used, albeit unsuccessfully, by segregationists like Senator Robert Byrd to try to stop the passage of civil-rights legislation.

Will writes:

How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

This question assumes too much. First, I can't imagine any nominee, including the most activist candidate, testifying that he supports a constitutional right to same-sex marriage. We've witnessed enough such hearings to know that nominees won't say such things for a variety of reasons. Second, I can't imagine any president nominating a candidate who had a record of supporting same-sex marriage. Third, it can just as easily be argued that the Democrat filibuster is preventing candidates who oppose same-sex marriage from ascending to the federal bench. The argument against filibustering judicial candidates, from the perspective of those of us who believe it's unconstitutional, has nothing to do with any particular or potential judicial ruling and outcome.

Will writes:

And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations — and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal

The Panama Canal Treaty is a perplexing example as it proves the opposite of Will's point. It was ratified by a two-thirds vote of the Senate, as the Constitution requires. And since a two-thirds vote would have been enough to defeat a filibuster, what's the point here?

Of course Senate Democrats, regaining the majority, might end the rule even as used against legislation. They might do any of 100 things. But I await the evidence from the filibusters' proponents that even eliminating the rule entirely would result in unwelcome consequences. I note that the House of Representatives operates without a filibuster rule.

Will writes:

Exempting judicial nominations from filibusters would enlarge presidential power. There has been much enlargement related to national security — presidential war-making power is now unfettered, Congress's responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The president's power wouldn't be enlarged. Until this president's election, no president has faced filibusters, or threatened filibusters, against ten of his nominees, with more to come. We're talking about returning power to the presidency that existed for all but four years of our history — prior to the election in 2000 of George Bush. As for presidential war-making power, which has nothing at all to do with the filibuster debate, Congress still retains the power to cut off funding for any war, as it did in Vietnam. As for Congress declaring war, the Constitution is silent on exactly how Congress is to make such a declaration. Respecting the Iraq war, Congress adopted a joint resolution authorizing the president, on his own discretion, to make war. I see no substantive difference between a declaration and resolution in this regard. Apparently neither did Congress.

Will writes:

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.

Of course, if the Republicans elect 60, 65, or 70 senators, they can defeat the filibuster. And if they do so each election cycle, then the minority will be too small to conduct filibusters. But what happened to Will's point about the importance of "minority assertion"? Is it only important when the minority consists of, say, 41 senators, the current number needed to conduct a filibuster? And why is that? Early in the Senate's history, a single senator could conduct a filibuster and block the Senate's business. Now, that was true "minority assertion."

The problem today is a systemic one, i.e., the misuse of a Senate rule to block judicial nominees from receiving the consent (or rejection) of the full Senate. Each of these candidates reportedly has enough votes for confirmation, but for the unprecedented use or threat of filibusters. The majority has every right and reason to change the rule.

— Mark R. Levin is author of the bestseller Men in Black: How the Supreme Court is Destroying America.

[The Ghost of FReepers Past]

Mark Levin is one handy guy to have around. I was hoping someone would address Will's arguments one by one.

[OldFriend]

Will ought to go back to fantasizing about Gennifer Granholm becoming President of the US

[goldstategop]

I agree with Mark Levin. If the Senate dispensed with the filibuster entirely, there would be two checks and balances to any preciptious and hasty action by the majority: the voters' ability to hold them to account for the way they voters and the presidential veto. In addition, the supermajorities would still remain operative for treaties and constitutional amendments. The House has operated for centuries without a filibuster rule. No, the sky wouldn't fall if the majority finally got its way in the Senate. One can actually make the argument the complete elimination of the filibuster would strengthen the minority's position by forcing it to address the majority's policies and actions on the merits instead of defeating them through pointless parliamentary legerdermains. What's wrong with that? It would make the opposition act responsibly.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[Lady Eileen]

....Mark Levin bump.

[doc11355]

Excellent analysis!

This is the type of careful, reasoned analysis I've come to expect from those Conservatives we look to for the intellectual, factual basis of our political belief system.

Compare the tightly reasoned and principled arguments each makes with the frothy, non-intellectual dribble coming from the Left on most issues. Whether you agree with Will or Levine, you have to agree that their powers of intellect are both superior and a credit to our cause.

[secret garden]

Bump to read later.

[PolishProud]

Maybe I'm just a dumb guy from a red state, but doesn't the full senate get an opportunity to vote on the President's nominee if they are allowed out of committee. How does that infringe on the right's of the minority?

If I reside in a state that does not have a senator on the judiciary committee, then I have no say in judicial appointments. That flies against the framers' principle that in a Republic I have representation in congress and fair and equal protection. My vote does not guarantee that I will be represented in the judiciary committee.

[hchutch]

The problem is, folks who want the nuclear option are going to demand George Will's head on a platter.

These days, certain folks have decided that any disagreement with their methods of accomplishing something - no matter how reasonable - is tantamount to disloyalty. And once someone is seen as lacking sufficient ideological purity, the long knives come out - no matter what they have done in the past or the reasons they have for the position they have taken.

There are folks who have said long knives out for RICK SANTORUM of all people because he endorsed Arlen Specter instead of Pat Toomey. This is getting way the hell out of control.

I can't trust the Demcorats on national security. I also think they are a bunch of control freaks on a number of issues, and I don't like high taxes. But I'm seeing control freaks on the right now... and those control freaks on the right are starting to worry me just as much.

[SoFloFreeper]

All right, that did it. You're on the list.

;-)

[Peach]

I agree with that 100%.

[7thson]

You're on the list, too! 8-)

[Wuli]

Mr. Will seems to have picked up a liberal point of view ,when it comes to the United States Congress; that is that a political minority has some unenumerated "rights" in Congress. It is a point of view without constitutional foundation.

The constitution gives the House and the Senate the power to set their own rules. The fillibuster is neither constitutionally mandated nor constitutionally prohibited. It rests completely on political tradition and not any requirement of constitutional law.

The fact that the constiution mandates that certain actions, such as treaties, receive approval from a super-majority, says nothing at all about fillibusters. The idea of an action needing that level of approval, in the lawmaking process in a democratic Republic, presumes that the action is either put to a vote, and passes or not, or that it is not brought to a vote. Neither of those three outcomes makes any presumption for or against a fillibuster.

A fillibuster is not about congress carrying out a process; to have a vote. A fillibuster is about preventing the legislative body from carrying out that process.

Robert KKK Byrd has made much of this false "minority right" concept in promoting another false corrolary to it; that preventing the continuation of a fillibuster is against some form of "free speech" rights of a political minority, in congress.

A fillibuster has nothing to do with free speech; of anyone. And, ending a fillibuster is not against anyone's right to speak. Ending a fillibuster simply limits the ability of someone to speak forever, as it is the intention of the fillibusterer to prevent any action but their speech from being conducted. Fillibusters are not about speeches or minority "rights".

Fillibusters are about voting - preventing it. There is nothing constitutional about a minority preventing any action that the constitution gives congress the power to take.

[The Ghost of FReepers Past]

Here's what our friends over at Powerline have to say about it:

Posted by The Big Trunk at 09:58 PM | Permalink |
TrackBack (0)
George Will on the filibusters

George Will argues that the filibusters of President Bush's judicial nominees should be allowed. Will shows that there is a very respectable conservative argument in favor of not changing the Senate rules to end the filibusters. Ultimately, however, I find his argument unpersuasive.

Will attacks from a conservative perspective a number of constitutional arguments in favor of changing the rules regarding the breaking of a filibuster. However, he doesn't address the primary argument that conservatives are making, namely that Article I, Section 5 of the Constitution empowers the Senate to determine the rules of its proceedings, and that this rulemaking power allows a simple majority to alter the Senate's standing rules at will. A scholarly discussion of this argument can be found here.

Turning the issue of prudence, Will argues that exempting judicial nominees from filibusters will enlarge presidential power. However, the president has always had the effective power to secure an up-or-down vote on judicial nominees when his party has controlled the Senate. Thus, the attempt to end the filibusters in question should be viewed as an effort to preserve, rather than enlarge, presidential power.

Will contends that the Republicans' remedy is to elect 60 Senators. This begs the question. Why should Republicans have to elect 60 Senators to do what a simple majority has always been able to do?

My view is that the option Republicans are considering is constitutional by virtue of Article I, Section 5. Whether the option is prudential depends on whether it is necessary to overcome major abuse. If the Democrats were filibustering manifestly unqualified nominees, or if they were following past precedent, or perhaps if they were filibustering only one or two ideologically egregious nominees, then their abuse (if any) might not be major. But since the Democrats are using the filibuster in an essentially unprecedented manner, and certainly to an unprecedented degree, to block nominees whose qualifications are not being questioned, it is natural and proper for the Republicans to contemplate, and if necessary take, counter-measures. The counter-measure being considered here is not only constitutional, it is one that the Democrats themselves have threatened to use in the past to curb what they perceived to be abusive filibusters.

Posted by deacon at 09:34 PM | Permalink | TrackBack (0)

[duckln]

Mr. Will seems to have picked up a liberal point of view ,when it comes to the United States Congress

Mr. Will has gotten more and convoluted. On Sunday TV he ridiculed Delay and the congress in the opposing the killing of Terri.

[neverdem]

Why Filibusters Should Be Allowed by George F. Will

FWIW

[Sun]

I received this from the Center for Reclaiming America (e-mail), and if you can't call them all, please at least call one or two.

If you can't call them, at least e-mail them (but calling is more effective).

THIS IS WHAT WE HAVE BEEN WAITING FOR. PLEASE make that call!

The Center has identified six key senators whose votes may well
decide the fate of the filibuster rules change. We are asking
all member of our online team to contact these individual
senators, urging each to FULLY SUPPORT THE FILIBUSTERING
RULES CHANGE.

*****CALL TO ACTION*****

Even if none of these six senators is your own senator,
please invest the time needed to call each right now.

Here are their names and contact information:

I guess on the weekend, we need to fax or e-mail these guys and the info can be found here:
http://www.conservativeusa.org/mega-cong.htm

Urge each to FULLY SUPPORT THE FILIBUSTERING
RULES CHANGE.

On Monday we can call toll-free at 877-762-8762 or call them directly by using the numbers next to their names.

Sen. Susan Collins (ME) 202-224-2523
Sen. Lamar Alexander (TN) 202-224-4944
Sen. Trent Lott (MS) 202-224-6253
Sen. Olympia Snowe (ME) 202-224-5344
Sen. Chuck Hagel (NE) 202-224-4224
Sen. John Warner (VA) 202-224-2023

[California Patriot]

Will is a damned good writer and usually has outstanding political and social commentary ... among the very best in the business. Unfortunately, he is also an establishmentarian. Such people can always be counted on to take a milquetoast position now and then, especially when it comes to "rough" tactics. It's sad to see. Will should know better than this. He should care less about being liked by the Ivy League crowd.