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Monday, May 23, 2005

Son of Filibuster

I think it's finally time to return to the filibuster issue, after long silence in this forum.  (I have been posting instead on the conlawprof listserv, which raises another amendment to Kaimi's earlier discussion of blogging vs. scholarship: sometimes the question is of one of blogging for a wide audience vs. posting for a narrow one.)  I'm glad my time on this blog was extended a bit, because it gives me a chance to close out my time here by returning to the issue I began with, just as it hits the point of "resolution" -- a word that, in a subsequent post, I hope to show is in fact far from accurate.

I think one reason I have been slow to re-post on this issue, apart from having expended my limited time resources elsewhere, is because I have been reluctant to get caught in a recursive loop of commentary and responses -- although I much appreciate the thoughtful comments I have received!  But in looking back over those comments, I am struck by the degree to which my interlocutors and I have diverged, not as to our views, but as to the subject under debate.  So before moving on to discuss other events and aspects of the filibuster debate, let me clarify what I have been saying.

Let me indulge in some taxonomy here.  The current debate over the filibuster involves a number of interrelated questions, including at least these questions:

1) Is the filibuster of judicial nominees unconstitutional?

2) Is the filibuster of judicial nominees unprecedented?

3) Even if unprecedented, is the filibuster of judicial nominees permitted by the current Senate rules?

4) Even if permitted, is the filibuster of judicial nominees wise?  (One could add a fifth question: even if wise in some cases, is the filibuster of these judicial nominees wise?  I will treat it as a sub-part of this question only.)

5) If a rules change is required or desirable, how must it proceed?

My focus on this blog (and elsewhere) has been on questions 1 and 5, and to a lesser extent question 3.  I am not convinced that the filibuster of judicial nominees is unconstitutional, and none of the debate on this point that I have seen, which I think has largely been driven by expediency rather than constitutional principle, has altered my view.  I may be wrong in ascribing motives, but that point is less important to me than the need to think through, carefully and with attention to the implications, the answer to this question.  Remember that my fundamental point has always been a narrow and simple one: that the Vice President, and all the members of the Senate (most certainly including the Democratic minority), are being called on to answer a constitutional question, and ought to be pressed -- whether or not they are obliged to do so -- to explain the reasons for their conclusions, and outline the future implications to which they are precommiting themselves. I am not saying that no constitutional arguments are available to those who wish to argue for the unconstitutionality of the judicial filibuster, although I am not convinced by those arguments.  I am saying that those arguments, if based on principle, contain implications by which their adherents must abide in the future.  If the filibuster of judicial nominees is unconstitutional now, for instance, it must be if the parties change sides (and this applies to both sides of the argument).  More importantly, if the filibuster of judicial nominees is unconstitutional because the Senate must provide an up-or-down vote when fulfilling their advice-and-consent role, then the filibuster must be equally unconstitutional when applied to all advice-and-consent nominees, no matter how insignificant and no matter whether the body wishes to abide by that rule or not. 

I think there are other implications, but leave it at that: where the interpretation of the Constitution is involved, I have argued, all constitutional officers must take the issue seriously, not just judges, because all of these officers have taken a constitutional oath.  I have focused especially on the Vice President, not least because he has said a constitutional officer may be forced to resign rather than comply when asked to take action he believes is unconstitutional.  That does not mean the Vice President is insincere in announcing he would vote to change the rules, including through a constitutional ruling as presiding officer; it does mean that he cannot let mere expediency alone guide his decision, and ought to be pressed to elaborate his views.  I have still seen no evidence that he has elaborated his views, or that he has been pressed to do so.  My view has been that this says something significant and unfortunate about how casually we treat the Constitution outside the courts, and how degraded the notion of a political officer's constitutional oath has become, not just for the oath-taker but for the citizen-voter as well.

A separate question is how the rules change must occur, even if it is either desirable as a matter of policy or constitutionally mandatory.  My view after careful and continuing study is that any of the options currently available involve some violation of Senate rules and/or generally binding precedent (i.e., prior rulings of the chair; and remember that not all traditions are precedents with this binding quality).  Remember that the goal of the leadership is necessarily to ensure an immediate majority vote, since any other option will lead to precisely the extended debate and super-majority vote requirement that they need to avoid.  So, for instance, having the Vice President make a constitutional ruling will lead to a majority vote: but it will also violate Senate precedents that make clear that such a question is supposed to be submitted to the whole body for debate.  And having the Vice President simply rule further debate out of order will likewise contravene Senate rules and precedents.  (One may fairly point out that, on this latter issue, Senator Byrd himself has skirted, abused, or even violated Senate precedent in the past; but apart from the fact that tomorrow's action cannot legitimate this activity if it violated the Rules, I do not think the Byrd precedents provide precise authority for what the majority is seeking to do here.  At the same time, I am not defending those earlier rulings.)  I think this CRS report is correct in stating that either of the procedures that, on my reading, are most likely to occur if the leadership proceeds with its plans "would require to the chair to overturn previous precedent."  This is clearly not an issue with lasting traction for the public, and even many lawyers may be more solicitous of court procedures than of the procedures of legislative bodies.  But I think that violating the Senate's rules to effect a rule change should be a matter for concern. 

Note that I have, from the beginning, left open the possibility that the Constitution itself prohibits entrenchment of the Senate rules.  This is a complicated issue, and I don't know the answer here; but I think it would, at least, provide the basis for a principled argument with at least some clear implications.  But if this press relase from Senator Frist's office is to be credited, that is not the constitutional argument before the body.  Rather, the question before the chair will involve "the appropriate amount of time to be used by the Senate to debate Circuit and Supreme Court nominations."  Senate precedent, as I understand it, does not answer this question in a way that favors the leadership, which suggests either that the Vice President will wilfully overturn precedent or, more likely, will base his ruling on the advice-and-consent-equals-up-or-down-vote constitutional argument.  (Note, as a side issue, that if the ruling is constitutionally based, there is no basis to single out "Circuit and Supreme Court nominations" from other advice-and-consent nominations; hence my concern with pressing the officers involved for a full elaboration of their reasons.)  So I respect the anti-entrenchment argument, but don't think it is going to provide the ground for debate here.  One reason for this may be that although this is the best constitutional argument available, the leadership (which enjoys only a slim and shifting majority on these issues) does not want to give up the possibility of entrenching rules against majority votes; but it may have other reasons for not going this route, and I cannot draw any firm conclusions here.

As to the other questions, these have been closer to the comments I have received.  I tend to believe that the filibuster of judicial nominees is permitted by the rules and not prohibited by binding Senate precedents.  So I may continue to disagree with my questioners on this point.  On the other questions, we may come closer to agreement.  Although I don't think the rise in judicial filibusters actually violates Senate rules or precedents, I do think a solid argument is available that it represents a change in institutional practice.  And although I think this tool is available to the minority, that does not mean I agree that it ought to be used, or used often.  I do not think the President is entitled to an up-or-down vote, but I think he generally ought to get one, even if that means that the minority, after raising tough questions, must swallow a loss, and even if we are talking about lifetime appointees.  (I should add that I think this policy argument applies both to filibusters and to other tools, such as refusing to give a nominee a committee hearing or permit the nomination to come to the floor.)  I am on record as saying that I think we need a reasonable number of genuinely brilliant judges (as opposed to merely dutiful and competent judges -- although we need them too) on the federal bench, including brilliant judges with whom I fundamentally disagree.  After all, many issues decided by the federal courts raise no deep constitutional issues and don't break down neatly along ideological lines, but do require innovative and thoughtful judging, which brilliant right-wingers can provide equally along with brilliant left-wingers (to use crude categories).  Although I doubt many of the current slate fit the "brilliant" label, I think they are competent to take the bench, at the very least, and the minority is mistaken in staking its all against their doing so.  It may be entitled to do so, but that does not make it wise or sound.  (I don't know whether I feel the same about all the current nominees.  I might be more or less inclined to think the filibuster appropriate in an individual case.  But I truly don't know.)

None of these considerations, though, alter the constitutional question or the rules-change question that are the focus of my concerns.  Indeed, I think the conflation of the multiple issues I have discussed above has been harmful in every direction.  It has led to inadequate attention to the core constitutional and procedural questions, and has allowed both parties to get off the hook by saying, in effect, that the policy considerations inform or even outweigh the constitutional and procedural questions.  This is where I agree with my questioner that "the politics aren't just on one side."  (I'm not sure that I agree that it's "all politics.")  The judicial filibuster is constitutional or not, and a rules change complies with or violates existing procedural rules, regardless of whether a nominee is "outside the mainstream," which I find a silly and inaccurate claim, and regardless of whether the President feels thwarted by the minority, which I think is irrelevant.  I am struck by how much both sides feel called upon to use broader "policy" arguments, often distorted ones, as window-dressing to justify their positions on what I think of as the core central issues.   

Well, that brings me up to date, I think.  More to come, believe it or not.         

Posted by Paul Horwitz on May 23, 2005 at 02:42 PM in Law and Politics | Permalink

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