May 27, 2005
TRIPLE NOT:
Why I Support the Filibuster Deal (Stephen Bainbridge, 05/26/2005, Tech Central Station)
The so-called Gang of 14's deal on judicial nominations aroused the ire of activists on both the left and right, but it is my friends on the right who seem to have been most disaffected. In contrast, I'm a proud charter member of the Coalition of the Chillin', which is dedicated to the proposition that the world did not end on May 23rd. (We even have t-shirts!)Some critics of the deal wanted the Senate GOP majority to pull the trigger on what they call the constitutional option (and the rest of us call the nuclear option), so as to establish a purported constitutional principle that the advice and consent clause does not authorize the Senate to require a supermajority vote to approve judges. I respect the expertise of the many scholars who hold this position, but am not persuaded by it. [...]
In my view, critics of the deal are putting short-term partisan gain ahead of both principle and long-term advantage.
Russell Kirk taught that there are ten core conservative principles, but at the heart of all of them is the basic notion that change should be slow and prudent:
Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don't know. ... Burke's reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to be gradual and discriminatory, never unfixing old interests at once.
... In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man's petty private rationality.
... Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. As John Randolph of Roanoke put it, Providence moves slowly, but the devil always hurries.The filibuster is a profoundly conservative tool, which advances each of Kirk's goals. It slows change by allowing a resolute minority to delay -- to stand athwart history shouting stop. It ensures that change is driven not "merely by temporary advantage or popularity" but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule? The left knows that the filibuster is a deeply conservative weapon whose main function is to advance the function the founders intended for the Senate:
In selecting an appropriate visual symbol of the Senate in its founding period, one might consider an anchor, a fence, or a saucer. Writing to Thomas Jefferson, who had been out of the country during the Constitutional Convention, James Madison explained that the Constitution's framers considered the Senate to be the great "anchor" of the government. To the framers themselves, Madison explained that the Senate would be a "necessary fence" against the "fickleness and passion" that tended to influence the attitudes of the general public and members of the House of Representatives. George Washington is said to have told Jefferson that the framers had created the Senate to "cool" House legislation just as a saucer was used to cool hot tea.
The filibuster furthers that objective by ensuring that change is, as Kirk put it, "gradual and discriminatory, never unfixing old interests at once."
While it's not necessarily not conservative to get rid of the filubuster for judicial appointments, there's certainly a good conservative case for not doing so. Posted by Orrin Judd at May 27, 2005 12:00 AM
Anyone who uses the "cooling saucer" cliche anymore is full of himself, and letting everyone know that someone else has to do his thinking for him.
Posted by: Raoul Ortega at May 27, 2005 1:20 AMRaoul Ortega:
You see no difference between the House and Senate ?
The "cooling saucer" analogy still seems apt.
Posted by: Michael Herdegen at May 27, 2005 1:40 AMOf course there's a conservative argument to be made for retaining the filibuster, and I'm pretty sure I've made it somewhere around here. But...
1. Not at any cost. For some of us, getting extremist right wing nutjobs on the bench is half the point of voting Republican.
2. The filibuster of judicial appointments is useful to Republicans only if there were a Democratic president and Senate. Leaving aside whether that's likely any time soon, and someone I know claims that the Republicans will have 60 senators before they have fewer than 50, do we really believe that a Democratic senate won't immediately do away with the filibuster, with the NY Times solemnly explaining why that's the responsible thing to do?
3. As Specter was apparently willing to say that he would vote to do away with the filibuster, regardless of whether he actually would have, the Republicans could have gotten a much better deal, or doesn't it matter that the Democrats are, right this moment, filibustering the President's nominees to the Courts and to the UN?
Posted by: David Cohen at May 27, 2005 7:43 AMI'm not a lawyer (and don't play on TV) but my understanding was that the Constitution did not provide for the filibustering of judicial nominees (or other nominees) and that the Dems were making a requirement out of thin air and getting away with it. So I wanted the constitutional option enacted to restore the Senate actions to what the Constitution says.
Posted by: AWW at May 27, 2005 8:06 AMAWW:
The Constitution allows each chamber to write its own rules. They voted on the current rules when they first sat for this session. The filibuster is aconstitutional, perhaps even anticonstitutional, but not unconstitutional and the Republicans approved it.
Posted by: oj at May 27, 2005 8:13 AMDavid's Point #1 is just right. The purpose of elections is partly to throw our bums in, remember.
Posted by: Bruce Cleaver at May 27, 2005 8:24 AMI wish the republicans had the guts to invoke the Golden Rule: THE MAN WHO HAS THE GOLD, MAKES THE RULES.
Posted by: AllenS at May 27, 2005 8:26 AM"The filibuster of judicial appointments is useful to Republicans only if there were a Democratic president and Senate." As I understand it, the Pubs never filibustered judicial nominees when the above situation occurred in the past, so why is it in their interest to keep this anachronism in place?
Posted by: JimBobElrod at May 27, 2005 8:30 AMThe nature of politics is such that, once one party tries some shady maneuver, it is only a matter of time before the other party is required to do it out of principle.
Posted by: David Cohen at May 27, 2005 9:11 AMThe "cooling saucer" analogy is just not relevant to confirmation. The House has no role.
Rules in the Senate can be unconstitutional. If there was a rule that black senators could not speak on legislation, would that be constitutional?
Yes. Courts wouldn't even have jurisdiction over the question.
Posted by: oj at May 27, 2005 9:22 AMThings can be unconstitutional even if courts lack juridsiction.
Posted by: Bob at May 27, 2005 11:27 AMBob - Yes. It just means there's no remedy to the violation of the law, except within the Senate.
Posted by: pj at May 27, 2005 12:21 PMBob:
Where the Constitution specifically delegates something to the determination of one branch it can not be unconstitutional when it makes that determination.
Posted by: oj at May 27, 2005 12:26 PMThe consent language is so vague that the senate could do just about anything it wants: define failure to object to be consent (so it would take a majority to stop a nomination); put in a supermajority requirement to approve or dissapprove a nomination; or even just give the president the power to appoint judges without checking with the senate.
The interesting question is what would happen in the President decided that he could define senate consent. Let's say that 51 senators wrote to the president saying that they consented to the appointment of Judge Brown and the president said that was good enough for him. Who would have standing to challenge it (given that the senate as a whole would not) and would the courts even involve themselves in a political dispute between the other two branches?
Posted by: David Cohen at May 27, 2005 1:10 PMIf they did seek to involve themselves why would the other branches listen?
Posted by: oj at May 27, 2005 1:14 PMWe know they would try (Kennedy). The real deal would start if the Court agreed to hear the case.
Posted by: jim hamlen at May 27, 2005 1:15 PMOJ: It's one of the great mysteries of life, but -- barring Jackson -- they always do.
Posted by: David Cohen at May 27, 2005 2:37 PM