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Monday, April 25, 2005

The Filibuster, the Constitution Outside the Courts, and the Press's Failure

Not enough attention has been given to this article, suggesting that Vice President Cheney is willing to cast the deciding vote, as President of the Senate, in favor of the view that filibusters of judicial nominees are unconstitutional.  The relative silence on this declaration, I think, is telling, on a variety of points.  It says much about views on the filibuster/nuclear option debate, about our views on the interpretation of the Constitution by elected officials as compared to judges, and about the failure of the press to take this latter point seriously and engage in adequate scrutiny.

A little background: the governing assumption concerning GOP threats to end the filibuster of judicial nominees is that it will follow something like the following process.  The Majority Leader would seek a ruling from the presiding officer that it is unconstitutional to filibuster judicial nominees.  In order to guard against a slim majority, the occupant of the chair would be the President of the Senate -- the Vice President.  This vote would likely be followed by a pro forma appeal by the Majority Leader, who would have the right to be recognized first, and an equally swift motion to table debate, which would be subject to a majority vote.  (Proceduralists are free to correct me.  Would a motion to table be necessary to move to a majority vote, or only an appeal of the ruling?)  This expedient would get around two problems: the supermajority needed to end a filibuster itself, and the two-thirds majority needed to effect changes to the Senate rules.

What I find curious about all this is that, under this model, the Vice President is likely to make the decisive ruling that the filibuster is unconstitutional as applied to judicial nominees -- yet no one has really attempted to probe the Vice President on this position.  Indeed, at least until this recent article, I'd seen no serious effort to ask him at all.  To be sure, Cheney had suggested during the campaign that he opposed Democratic filibusters of judicial nominees -- it was a favorite applause line of his.  But when asked about the nuclear option, he turned surprisingly coy, simply saying, "Some of us think there's a certain appeal to that kind of approach."  Well, at least now he's spoken more clearly on the matter.  It's about time.

Still, there's lots more to ask him. 


Think back to the the first Gulf War, when Cheney was the secretary of defense and Congress was debating whether to authorize the use of force against Iraq.  Faced with a close vote, Senate Republicans intimated that they would launch a filibuster rather than lose a vote in the whole Senate.  Quizzed on the subject on the MacNeil/Lehrer Newshour, Cheney made it clear that he had no problem with a filibuster, saying that it would be better to have no vote at all than have a defeat. 

Proponents of the death of judicial filibusters, apparently including the Majority Leader and the Vice President, could argue that the vote was different there.  The Senate is required to give its advice and consent to judicial nominees, and that means the whole Senate.  By contrast, the Constitution doesn't use the same words when dealing with "ordinary" legislation.  But voting to authorize the use of force is hardly "ordinary" legislation by any common use of the terms.  Even if it is a term of art distinguishing majority votes from supermajority votes, a parallel question can be asked: if the Constitution gives only Congress the power to declare war, why does it not mean that only the whole Congress can make this decision?  Why would Cheney think that a majority of the Senate may obstruct the legislative process when it comes to placing troops in harm's way, but is barred from doing so when it comes to confirming judges?

One could ask other questions.  The Constitution also requires the Senate's advice and consent for ambassadors and other executive branch officers.  Does that mean that it is equally unconstitutional to filibuster such nominees?  Does that in turn mean that past Republican filibusters of ambassadorial nominees like Bill Weld were lawless acts?  And what about bottling up a nominee in committee, as the Republican members of the Judiciary Committee did during President Clinton's term on several occasions?  Was this, too, unconstitutional? 

Let me be clear that there may be sound answers to these questions.  My own view is that filibusters -- including filibusters of judicial nominees -- are permitted under the Constitution.  Moreover, if any argument could be made against their constitutionality, it would at a minimum have to apply to all advice-and-consent nominees; there is no principled distinction between judges and other advice-and-consent officers.  I also would question whether there is any sound textual reason to conclude that filibusters of advice-and-consent nominees are unconstitutional, but not filibusters of so-called ordinary legislation.  The Majority Leader apparently thinks otherwise.  But just as the President can only confirm nominees with the advice of the Senate -- which, the constitutional argument against filibusters runs, means the whole Senate -- so a bill only becomes law when it "shall have passed the ...Senate," which could just as easily be read to require a vote by the whole Senate and prohibit a minority from preventing such a vote.  (There are interesting arguments, made by Michael Rappaport among others, that filibusters themselves are constitutional, but entrenching them against rule changes by a simple majority is not.  These arguments do not directly impact the Vice President's apparent view, signaled by his willingness to so rule on the Senate floor, that the filibuster itself is the problem.)  But I am content to hear out further arguments on these questions. 

There's a lot to ask, in short.  What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees.  Nor, for reasons I hope I have demonstrated, is it enough to stop there?  What constitutional conclusions has he reached on all these other questions?  The failure of the press to push for answers on these questions is really disappointing -- inexcusable, in fact.  It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way. 

What accounts for this silence?  I don't think it is simply that this level of detail is reserved for law geeks.  I think it says something about how we think about the Constitution as applied outside the courts.  The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party.  Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter. 

But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote.  At least it is not supposed to be.  It decides a constitutional question -- and one that, at that, would likely be insulated from judicial review.  The Vice President, along with the members of the Senate, takes an oath to "support this Constitution," and we ought to assume he takes it seriously.  That means that, finally, only his views will matter -- not those of Senator Frist, or his lawyers, or the public, or even the President.  Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences.  Is the same any less true of any other government officer faced with the duty of interpreting the Constitution?  In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable.  It speaks to an unbecoming cynicism about the role of the legislator or parliamentary officer.  These officials, just as much as judges, can be oathbreakers, and that ought to mean something.  At the very least, by acting as if these questions mean something, we attempt to ensure that they do.   (Republicans should note a corollary point: any Democratic Senators who think that the filibuster is unconstitutional may have a duty to speak up as well.)

Let me make one last point about why all this matters, at least in a society that takes oaths seriously.  What if the Vice President concluded, after further deliberation, that judicial filibusters are constitutional, but the President or the Majority Leader pressed him to rule that they are unconstitutional anyway?  For once, the Vice President has spoken clearly enough on this point.  Here's what he said more than a decade agao when discussing what should happen when an official who has taken the constitutional oath is faced with a strong conflict between his views and the President's orders:  "In the end, if the disagreement is big enough, then you ought to resign, as a matter of principle."

Now are the stakes big enough to start asking meaningful questions?  And if not, is it time for us to start redefining the words oath and principle?      

Posted by Paul Horwitz on April 25, 2005 at 05:12 AM in Law and Politics | Permalink


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Paul Gowder has a very interesting set of comments at PrawfsBlawg: The Filibuster, the Constitution Outside the Courts, and the Press’s Failure. A taste: What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect... [Read More]

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In principle, the judicial filibuster could be eliminated by a simple majority vote in the Senate. However, such a vote is unlikely to happen because the proposal to change the rules would be filibustered. Nuclear options are a family of procedural tr... [Read More]

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Paul Gowder, the reason for bringing in the issue of constitutionality is that without it the Republicans would have to follow the rules of the Senate, and the rules of the Senate require a two-thirds vote to change the rules. By claiming a rule is unconstitutional they can throw it out with a simple majority.

Thomas, the hypocrisy is on the other side. Democrats aren't painting this as a battle for activist judges (you may say that's an effect, but it's not what their claimed goal is). Republicans are the ones who say they are doing this to save the nation from activist interpretations of the Constitution, but the method they're using relies on Cheney making an unbelievably activist reading of the three words "advice and consent".

Posted by: KCinDC | May 21, 2005 4:45:34 PM

What an odd discussion--a criticism of Cheney for (apparently) acting as Democrats insist that all judges can and should act. When did we start expecting more from the other branches in the realm of constitutional interpretation?

Posted by: Thomas | Apr 27, 2005 1:16:54 AM


You absolutely can't be serious. First, you want to be hyper-technical about the distinction between a democracy and a federal republic (when what we are talking about is a Senate vote, not the structure of the federal government), then you say that you've been unable to determine any difference between Art. II Sec. II's 2/3 requirement for treaty ratification and the remaining advice and consent requirements as to all other appointments? I can't believe the rest of us got that so wrong for so long! (You should at least write an amicus brief when someone picks up on your theory and moves to have CJ Rhenquist and J Thomas removed from the bench - seeing as how neither of them received 60 votes as required).

Your discovery either makes you a constitutional visionary or simply another liberal reading the Constitution to say what he wants it to say rather than what it actually says. We'll let the legal academy decide.

As to your point that I should get over the fact that "someone qualified should be turned down by the Legislative body" I guess you don't understand my point that none of these judges have been turned down, they have been denied a vote precisely because they will be accepted. Far from being repudiated, each of the filibustered nominations have been validated by majority support; which I know is no longer is a concept favored by the party that can't garner any.

Then you say that sometimes more than a simple majority is required to decide matters, after having seen no real distinction between matters that the text of the constitution sets out as requiring 2/3's concurrence and matters it does not.

As far as seeking to protect rules that I like and do not like: If you think that the Senate can adopt rules such as the filibuster, then you must also believe that it can repeal such a rule. It seems to me that protecting the majority vote is no less noble than protecting the minority dissent? But then I'm old fashioned about the whole majority/minority thing in our dual sovereignty-federal republic.

Posted by: MJ | Apr 25, 2005 3:28:09 PM

Okay, MJ. If you want to be hypertechnical, we do not live in a democracy. We live in a federal republic. Then we hit the very strange concept of dual sovereignty. These factors go into how Congress works. As Paul noted, a supermajority is a well known part of procedure. There are protections of the minority view in place for a reason. Now, as I sit here and ponder Art. 2, sec. 2, cl. 2, I am struck by the 2/3 requirement on treaties as the definition of advice and consent. It takes 2/3 to consent ... and then the same language is repeated in the appointment power. Advice and consent of the Senate.

Sorry, I don't see this affront ot the text of the Constitution in the filibuster.

Now with regard to your disbelief that someone qualified should be turned down by the Legislative body, are we to abdicate the discretion of the Congress of the United States, in whom all legislative power is vested, to third parties or NGOs? You misread my argument and used a logical fallacy in replying originally. You took what I said, with reference to the filibuster and the 2/3 requirement and attempted to generalize such statements to other situations with other requirements. Sometimes, it takes more than a simple majority. And yes, Thurmond was well within his rights to attempt to filibuster civil rights legislation. I may find the position odious, but that does not stop him from having the full protections of the United States.

Like First Amendment Jurisprudence, where the point is to protect speech you dislike not speech you like, the filibuster is a parlimentary check for every minority party in every Congress. Simple majorities in a direct democracy produced demogaugery.

Posted by: Joel | Apr 25, 2005 2:41:58 PM

No Paul, not a death knell to democratic values, but an affront to the text of the constitution which plainly spells out the limited occasions upon which a super majority is required to pass legislation, amend the constitution, or ratify a treaty.

Posted by: MJ | Apr 25, 2005 2:02:47 PM

MJ: some things require a supramajority. That's not necessarily inconsistent with democratic principles. It takes a supramajority to change the constitution, to remove the president after impeachment, etc. The justification for the fillibuster process in general is as another constraint on the power of the government: a bill or an appointment can't get through if it so deeply offends 41 senators that they use the fillibuster. It's not some magical "the losers get to kill everything" weapon. It just requires a slightly larger majority than normal. If the Republicans won 60 seats, they could ram everything through.

So yes, in this context, it was perfectly fine for Strom Thurmond to try and fillibuster every piece of civil rights legislation ever. He didn't succeed. He couldn't bring over 40 others. Similarly, the Democratic fillibuster of the bankruptcy bill didn't succeed because 13 democrats changed sides.

I fail to see how permitting some decisions to be made on the basis of a 60-40 vote only, rather than a 51-49 (or 51-50 with vp) vote, sounds the death knell to democratic values.

Posted by: Paul Gowder | Apr 25, 2005 1:39:23 PM

Isn't every single piece of legislation or nomination to which there are "no" votes an example of the majority using "numerical superiority to trample the minority viewpoint"? Isn't that sinister tactic more commonly called "democracy"? You speak of majoritiarian rule as though it is some inconvenient hyper-technicality. It is the premise of our government.

Is your argument actually that unless your political view/policy preference has been enacted/prevailed you have been denied dissent? Isn't the political process that you vote your point of view and then let the voters decide who has the better argument by their decision on who to return to office? Why should a minority be relieved of the responsibility to convince a majority that there view is better for the people they serve before their policy preferences prevail? Your rationale seems to be that elections don't really matter. Was Strom Thurmond right to stand in the well of the Senate to block legislation that the majority of our elected representatives wanted to vote into law? You must think that he was.

"By forcing [nothing] to an up or down vote in the Senate a simple [minority] can ignore bi-partisanship, collegiality, and respect for the [majority] party as they bypass any meaningful [support for] a nominee."

The diffenrence is that the Republican position is the one supported by the collective will of the people who have sent a Republican President, majority of the House and Majority of the Senate to Washington.

You also say that I weight too heavily that the three nominations I mentioned are (or were) state wide office holders. That is only one point that I mentioned. (ABA qualified, nominated, supported by a majority of the Senate). I won't go through their bios, but each has impressive academic and professiona accomplishments, that each has been elected by the people of their state to state-wide office is not the be-all end-all, but it does speak to their qualification to hold office. Again, if you don't like my rationale: What is the substantive reason that they ARE NOT qualified to be appointed? I still haven't heard a reason.

Posted by: MJ | Apr 25, 2005 1:16:47 PM

I think you are missing a lot of the points. That you rely so heavily on teh idea that if someone is electable in a particular state that they are, therefore, proper to be appointed for life to the federal bench is counter-intuitive to say the least.
You don't want to hear about the vast majority of judges that were confirmed, you don't want to hear about the bedrock principle of the United States that the majority has rights but not to the extent of running roughshod over the minority.

It is not only the question of whether a minority voices its complaints, but whether the minority can protect itself. Simply put, if you get a majority of the Senate this election cycle, you don't get to make unilateral decisions. That is what the attempt to stifle the filibuster is. The current majority wants to use its numerical superiority to trample the minority viewpoint. Because they think they can. If the position was reversed, I wouldn't be in favor of the Democrats ending the filibuster, either.

Finally, dissent is stifled when there is no meaningful way to object. By forcing everything to an up or down vote in teh Senate a simple majority can ignore bi-partisanship, collegiality, and respect for the minority party as they bypass any meaningful opposition to a nominee. So, yes, at least one of the learned folk reading here, would consider bypassing the filibuster to be stifling dissent.

Posted by: Joel | Apr 25, 2005 12:14:27 PM

I think that this is a great website, usually frequented by very intelligent and thoughtful folks - unlike a lot of the rant-fests on other sites. Thus, I would like to have some discussion on the actual merits of the filibusters.

First, how can the learned folks visiting this site seriously argue that requiring the full Senate to vote is "stifl[ing] all dissent." Some of the ten judges that are being blocked have been blocked for four years. The Democratic minority has made their case against these nominees time and again, including a 30 hour session devoted to nothing but judicial nominees in 2004, and has not convinced the majority of Senators to vote with them. Far from being stifled, their objections have been heard and argued ad nauseam. The question isn't whether the minority party's views have been heard, its whether the minority party's views should be allowed to PREVAIL over the views of the majority of the Senate. Why should the minority's view prevail? Will you still feel this way in 2009 when President Clinton's nominees are filibustered at the same of an even greater rate?

Second, I don't think anyone on the left has actually debated the MERITS of the filibusters of Justices like Owens, twice elected by the people of Texas, Rogers-Brown, twice elected by the not-so-conservative citizens of California, and Pryor, also twice elected to be the top law enforcement officer for Alabama. Why do these judges not deserve appointment to the federal courts when they have been nominated by a sitting President, have all been rated well-qualified by the ABA, and have the support of a clear majority of the Senate?

Please, Please, Please, don't just spout back the talking points that 206 judges were appointed, tyranny of the majority, blah, blah, blah:

Do the readers of this website actually feel that the Democratic Party has not been heard on the issue of judges? Should the minority view prevail over the majority? Do these particular judges actually deserve to be filibustered?

Posted by: MJ | Apr 25, 2005 11:41:43 AM

I believe that the crux of this debate goes to the "advice and consent" clause. The argument is that the filibusters are preventing the advice and consent of the entire Senate in determining whether a particular appointee is appropriate. The counter argument being that the right of the minority to prevent the tyrrany of the majority is being kept in filibustering and that is a lack of consent.

The constitutional issue has to be brought up, partially because that is how the Republicans chose to frame the issue. To them, this is the "constitutional" option while it is "nuclear" to the Democrats.

Paul H. hits on the interesting questions in looking to whether anonymous holds in committee would be constitional as well as the nature of the decision making process itself. Is this a truly principled argument, or has a minority that once used this very tactic decided that, as a majority, it will stifle all dissent?

Posted by: Joel | Apr 25, 2005 10:36:00 AM

I'm not real clear on the Senate rules, so perhaps I'm misunderstanding something: why is this a constitutional issue at all? Why would anyone need to say "judicial fillibusters are unconstitutional?" Wouldn't the M.O. actually be to simply say "the Senate gets to make its own rules and we say no more judicial fillibusters?" Then do some procedural magic to get an up-down vote on that...

Posted by: Paul Gowder | Apr 25, 2005 10:27:07 AM

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