Filibustering the Constitution

The Washington Times ^ | May 6, 2003 | James L. Swanson

[AFPhys]

This afternoon, Sen. John Cornyn, Texas Republican and chairman of the Senate Judiciary Committee's subcommittee on the Constitution, will convene a hearing on "Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent." It's about time. For the past three months, Senate Democrats have filibustered the nomination of Miguel Estrada to the U.S. Circuit Court of Appeals for the District of Columbia. Last week, they made official their hitherto informal filibuster of the nomination of Texas Supreme Court Justice Priscilla Owen to the U.S. Fifth Circuit Court of Appeals. And it might not end there. In the future, other nominees, including to the U.S. Supreme Court, might become filibuster targets.

[AFPhys]

I am increasingly confident the GOP is going to do a great service to the US by getting a handle on this problem.

[thepitts]

Yea, Now the republicans are interested in the constitution.

[Dead Corpse]

I'm willing to give them the chance to prove that they have actually read the Constitution. Not much evidence of it so far... but there are a couple of bright spots. This is one of them.

[Raymond Hendrix]

This is a great idea but it will come back to haunt when the Democrats have the majority. Nevertheless I agree that the constitution should be observed regardless. Of course, it is so much toilet-paper now anyway because people cannot read plain english.

[AFPhys]

I totally disagree with your "it will come back to haunt"... the GOP has never conducted an all out filibuster on any Demodog nominee for the judiciary except in the very rare instances that they were clearly fraud problems. That decision may have haunted us with exceedingly liberal judges in the past, but it clearly shows that they were respecting the intent of the Constitution, unlike the situation the present Demodogs (and demagogues).

[Robert_Paulson2]

Changing the rules sounds so simple....

The writer neglects to say that the "rules" probably require a super majority... and that sever "republican" ahem... senators will defect because they too, support a woman's right to choose.

It would be cool if the pubbies rammed this through.

They don't have the stomach for it... do they?

[trebb]

This is a great idea but it will come back to haunt when the Democrats have the majority

This will not be haunting if the Dims regain the majority - the fact of their majority will be the haunting thing...

[talleyman]

GOP backbone in the Senate would be a refreshing change. However, I've seen too much "roll over & play dead" to get excited at the prospect.

[ZGuy]

When SCOTUS ruled on the constitutionality of the Florida recount and ruled in favor of the constitution (and against Gore) the democrats began their mantra of "selected, not elected."

In this case, if the blockage of nominees is ended because their fillibuster is found to be unconstitutional we can definitely expect them to spin it to rally the uninformed and make the republicans look evil. I'm sure the new battle cry is already ready to go.

[gathersnomoss]

It's about time. Let's get on with it. Bush should be spouting off about this daily.

[steve50]

Yea, Now the republicans are interested in the constitution

I remember when klintoon sent up judges with the support of the ABA and the republicans were claiming that the ABA had no Constitutional reason to have their position considered. Now one of the reasons they put out is the nominee has ABA approval. Sounds like they've gone schizophrenic.(sp)

[freeeee]

The GOP, through its repeated and egregious Constitutional violations both historic and especially recent, has lost any claim for concern about the Constitution being violated.

They are now exactly in the same league as Democrats: They'll act rightous about the Constitution when and only when it furthers their interests.

The Constitution to the GOP is now nothing but a tool to be used at politically opportune moments, such as the one the article mentions. One would need the attention span of a house fly to think otherwise.

[jackbill]

While Swanson makes a very good case for the fact that a super-majority requirement for judicial nominations is unconstitutional, his "solution" is weak.

If the DemocRATs will filibuster a judicial nomination, won't they filibuster a change in the Senate rules?

I prefer Jim Talent's solution.

[firewalk]

bttt

[Stay the course]

[Senate rules] are merely internal procedures, and under any proper understanding of the history and theory of legislative bodies, no prior Senate can exercise perpetual, dead-hand control over the present one.

Senate Rule V: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."

He's arguing that the Senate can ignore their rules whenever they choose, if they assume that a prior Senate has no authority over the present one. But that assumption requires them to ignore Rule V (properly a "metarule", since it governs how rules are made), which gives them precisely that authority. Therefore, his argument is circular.

[AFPhys]

I will not disagree with you on that, but I'll leave that one to the real experts.

It is my belief that the strongest argument is the Constitutional one that "any Senate rule or procedure — filibuster included — that allows the minority of the body to prevent the majority from consenting to a judicial nomination is in conflict with the Constitution." and that they will be able to take it to the Supreme Court on that basis.

[truthserum]

I signed on Free Republic this afternoon to post a link to our white paper on filibusters of judicial nominees. What a pleasant surprise to see a similar idea from a separate source. Our Executive Summary and the complete paper is available at http://www.aclj.org/resources/judconf/Filibusters.pdf, and a press release summarizing those documents is found at http://www.aclj.org/news/pressreleases/030506_filibusters.asp.

We take the matter just a bit further in development than does Mr. Swanson from Cato. Specifically, we call for a vote by a simple majority of the United States Senate to affirm the proposition that the Senate has the right under the Constitution to make its own rules (free from judicial interference), and that a simple majority has authority to exercise that power. Then, we call for vote to amend Rule XXII (the Cloture Rule) to eliminate the supermajority requirements. Finally, we call for the judicial nominations that have been subjected to filibuster to be brought forward for a vote on whether they should be consented to.

[Stay the course]

His legislative vs. executive context argument (which others have also made) is reasonable, if not rock solid. Appointments originate with the President and require the "consent" of the Senate. Legislation originates with Congress and requires the "approval" of the President. So filibusters are legitimate if applied to legislation, but not if applied to appointments. And historical precedent backs this view up. Still, objectively, I think you could argue that it is a bit convenient given the circumstances.

The Constitution only requires that the Senate "pass" a bill, which means only a simple majority is required. The legitimacy of a filibuster should arguably depend only on whether it is used to extend useful debate, or to force a supermajority requirement. That should be true whether it is applied to appointments or legislation, and, certainly, whether it is applied by Republicans or Democrats.

[pabianice]

Blah, blah, blah. And after the lecture, the Repubs will return to being the gutless cowards they are, too afraid to make the Dems hold a real fillibuster. So the Dems win.