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Thursday, May 26, 2005

Some Reactions to Reactions to the Filibuster Compromise

I'll try not to run this issue to death now that there's at least a temporary compromise on the table.  But I thought a couple of links were worthwhile here. 

First, law professor Douglas Kmiec criticizes the compromise, but does so, I think, on principled grounds -- that judicial filibuster is unconstitutional, so any compromise that allows it to remain must perforce be opposed.  I disagree with his constitutional view but certainly commend the principled nature of his disagreement.  Note that Kmiec correctly notes that if the constitutional argument is based on the advice-and-consent provision, then any form of blocking nominees from an up-or-down vote should be equally constitutionally problematic -- and both parties, as he notes, have exercised such tactics.  From a constitutional standpoint, I fail to understand efforts to argue that a minority is barred from preventing an up-or-down vote, but the majority may deny the President's nominee from getting a vote in the full Senate.  One thing I would question in Kmiec's article is his apparent distinction between "judicial filibusters" and filibusters of other advice-and-consent nominees; I think no such distinction is tenable on the basis of the constitutional text.  Still, I think the article is a fair and principled one.  I would also point out Professor Bainbridge's posts, linked to in part here. 

One set of posts I disagree with is from Mike Rappaport, my erstwhile colleague at USD and a serious writer on these issues.  His posts are here and here.  Mike writes: "Bainbridge argues that he favors the filibuster as a matter of principle, not as a means of benefitting conservative nominees. I am in favor of following principle also, but it does not necessarily make sense to follow principle when the other side doesn't. . . . Principle is fine, but reciprocity is fairer and can often help to sustain principle. If the Democrats are going to use the filibuster in an excessive way, then the Republicans should use the nuclear option -- or at least threaten it to get an acceptable deal, such as one that applies in 2009 when neither party knows who will be the President."

Well, I think following principle is an intrinsic good, not an instrumental one.  Moreover, it seems to me we have some data to gauge the effectiveness of reciprocity with respect to congressional practice, and it has not been a ringing success: it simply leads to an endless regress in which each side blames its unfortunate innovations (certainly including increased Democratic use of the filibuster) on the wrongdoing of the other side.  If reciprocity were measured and genuinely responsive, it might be a fine tool; but it is not.  That, it seems to me, is one of the many reasons we ought to remain loyal to principle.  To put it in Posnerian terms, it is a pragmatic justification for loyalty to rule of law values, which certainly include respect for process -- including the process of changing the Senate rules.

Nor should we take violations of principle lightly simply because they involve legislative practice and not something else.  I take it Mike doesn't think courts ought to ignore the rule of law for similar reasons of reciprocity over principle; why, then, should we be sanguine about the Senate's exercise of the unclear option, at least if that exercise would violate Senate rules?

Finally, Mike writes: "Bainbridge argues that saving the filibuster was a good thing. Perhaps. But what makes him think that President Hillary Clinton, with a Democrat Senate, won't use the nuclear option when Republicans filibuster?"  Well, as far as HRC, I'm not holding my breath on her winning that office.  And I certainly would go on record as opposing a Democratic Senate and/or President either arguing on constitutional grounds that the filibuster is impermissible, or employing the specific rule-change tactic contemplated in this last go-round.  But Mike, as I understand it, believes that although the filibuster may be constitutional, entrenching Senate rules changes against a majority vote is not -- so on his view, the current Senate or a future Democratic Senate could always change the rules.

Posted by Paul Horwitz on May 26, 2005 at 08:21 AM in Law and Politics | Permalink

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Posted by: Kelly Ronald | Sep 11, 2005 12:58:24 AM

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