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Monday, April 25, 2005

More on the Filibuster

As always, events are in the saddle and ride mankind, not vice versa.  After I wrote my filibuster piece, but before it was posted, the Vice President again publicly pronounced his willingness to cast his vote to end the filibuster of judicial nominees.  Cheney's statement, as reported in The New York Times, does not give us adequate evidence as to whether he sees his vote as being based on the practical merits, or on the constitutional question that would necessarily be presented by such a ruling.  But, as I said in my previous post, the procedural posture is such that Cheney would be ruling on a constitutional question, not on whether or not such filibusters are a good idea.  And so my views stand.  The comments to my previous post have raised interesting questions about whether filibusters are a good idea.  But the question Cheney must be asked is whether they are constitutional or unconstitutional, for that must be the basis for his vote as presiding officer.  And for that vote to be understood with any consistency, we must ask him what understanding of the Constitution would underlie any such vote, and what implications that vote would have for any other uses of the filibuster.  I say again:  Constitutional officers take a vote to defend the Constitution, and that should mean that any constitutional votes they cast are made in a principled, thoughtful way.  I see no evidence yet that this is so in the case of the judicial filibuster -- a sub-category that is not itself constitutionally meaningful. 

Let me also add

a quote from a later story that I think speaks to my earlier post.  It's Senator Arlen Spector speaking:

"I think it is really necessary for Democrats not to follow a straight party line on voting for filibusters and Republicans not to follow a straight party line on voting for the so-called constitutional nuclear option," he said on CNN. "I think, if we voted our consciences, we wouldn't have filibusters, and we wouldn't have a nuclear option."

I don't know whether that final sentence is right.  But the first sentence surely is: legislators casting votes on constitutional matters are obliged to follow what one might call their constitutional consciences, and an insincere vote on either side is an abdication of duty.  Still, my focus has been on the Vice President, and I think the fact that he has not been pressed on the constitutional issues suggests just how much we have all taken for granted the politicization of the Constitution outside the courts.     

Posted by Paul Horwitz on April 25, 2005 at 11:30 PM in Law and Politics | Permalink


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Though I'm sure you dissent, the constitutional argument has been reiterated time and again. Article II, Section II provides that the President "may nominate and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States"

A majority has consented to each of the judicial nominees that has come to a vote. By filibustering, the minority has denied the President his constitutional power to appoint and the Senate it's constitutional power to consent. The ruling by the Chair (the VP) would be that the filibuster improperly blocks the performance of two constitutionally authorized powers.

Now, you can disagree with that interpretation, but I'm certain that that is the understanding which underlies the vote to come from the chair.

Posted by: MJ | Apr 26, 2005 11:32:15 AM

The "Constitutional Option" has a different focus, I think, from the focus suggested by Paul Horwitz. The paper issued on April 25 from GOP Senate majority's Republican Policy Committee does not focus on whether a filibuster of judicial nominees violates the constitution. Rather, it focuses on the constitutional power of a majority of the senate to determine senate practices and procedures. It points out that Senator Byrd used the "constitutional option" several times to change senate practices and procedures by way of a simple majority vote, and it argues that a restoration of the prior practice (in which no judicial nominee with simple-majority support whose nomination reached the senate floor had ever been filibustered) may be accomplished by simple majority vote.

One of the reasons for the senate to exercise this "constitutional option" according to the Policy Committee paper is to return to the constitutional standard of confirmation of judges by simple majority vote. But the focus of the argument is that it is constitutional for the senate to determine its practices and procedures by majority vote.

I think the Policy Committee paper is persuasive with regard to the right of a majority of the senate to determine the way in which it will do business. I am not persuaded that the Constitution requires up or down votes on judicial nominees, but I am persuaded that the Constitution empowers a majority of the senate to determine that such votes shall take place. I am also persuaded that the traditions of the senate are more on the side of the GOP than of the Democrats in this dispute.

Posted by: Mark Scarberry | Apr 26, 2005 2:21:37 PM

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