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Saturday, April 10, 2010
Consistency and judicial filibusters
Rick argues (in the post to which Paul links) that no "Democratic [sic] who praised, during the Bush administration, the filibuster as a vital protection for minority interests in a democracy has any standing to object to any Republican attempt to use the filibuster in the context of the upcoming nomination battle."
But presumably the core value is to make Senators behave consistently (rather than opportunistically) in matters of law and process. If so, is it just as fair to say no "Republican who [criticized], during the Bush administration, the filibuster as [anti-democratic or violative of the Senate's obligation to give advice and consent or of the President's power to nominate judges or who supported the Nuclear Option] has any standing to support the filibuster in the context of the upcoming nomination battle"? Is this an example of "A Plague on Both Your Houses," because both sides are behaving inconsistently? If hypocrisy is often treated as the biggest sin, is the Democratic position more hypocritical than the Republican position? And, if we are thinking in terms of consistency and escalation, is it significant that the Democrats never filibustered either Roberts or Alito?
This is why many critics of current Republican filibuster practices aim much of their ire at Senate Democrats who, back in 2004-05, were so cowed into believing they faced some permanent minority status that they missed the opportunity to end (what many regard as) a pernicious practice.
Posted by Howard Wasserman on April 10, 2010 at 07:10 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink
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Comments
Paul, I am -- as you guessed -- sympathetic to the point that (in a world where politicians actually think about what it means to say that something is "unconstitutional" and actually take seriously their oaths to the Constitution) "the 'you changed the rules' argument only works as a matter of consistency for those who believe the filibuster is constitutional; if they have previously argued that it is unconstitutional, particularly for judicial nominees . . . , then they are oath-bound to follow that view regardless of changes in leadership." But, I'm not sure that's the world we live in. So, I guess I would "allow" (if anyone asked!) a politician who had argued (something like) "filibustering judges is not consistent with the advise-and-consent charge given to the Senate" to now say, "well, it seems inconsistent with the spirit, if not the letter, of the Constitution to me, but maybe we had ourselves a little constitutional moment, and now this is the way the Senate has -- for better or worse -- decided to do things, so I'm going to filibuster, too."
Now, all that said, I know that there are smart people -- who have studied the matter more closely than I have -- who think that it *is*, actually, unconstitutional to, in effect, move via Senate practice to a super-majority requirement for judicial nominations. I'm not there, though.
Posted by: Rick Garnett | Apr 11, 2010 9:04:23 AM
I did not take on Rick's observation on this point because I think he stated the point pretty fairly. My own view is close to Rick's -- that the filibuster, especially in its current watered-down form, is usually unwarranted and unfortunate but is not unconstitutional, whether for nominations or ordinary legislation -- and it has not changed with the switch in administrations. I do think, but Rick may not disagree, that the "you changed the rules" argument only works as a matter of consistency for those who believe the filibuster is constitutional; if they have previously argued that it is unconstitutional, particularly for judicial nominees (remember the "constitutional option" label), then they are oath-bound to follow that view regardless of changes in leadership. But I think it is fair to point out the *possibility* -- not the likelihood -- that some members, on either side, might undergo genuine good faith changes in their position. Having said that, both sides usually frame their arguments with such total conviction that it is hard to see how they could have changed their views in a good-faith manner; it might at least be nice if people said, I think the filibuster is constitutional/unconstitutional but there is room for good-faith difference of opinion.
Posted by: Paul Horwitz | Apr 10, 2010 1:46:17 PM
Howard -- first, thanks for catching ("[sic]") the typo; it was my fault, and not NRO's. You ask, "is it just as fair to say no "Republican who [criticized], during the Bush administration, the filibuster as [anti-democratic or violative of the Senate's obligation to give advice and consent or of the President's power to nominate judges or who supported the Nuclear Option] has any standing to support the filibuster in the context of the upcoming nomination battle""? Probably, though a Republican *could* say -- and I'm not saying he or she *should* say -- "well, you all changed the rules. You treated Miguel Estrada really shabbily. So, now we are going to play by your changed rules." (Speaking only for myself, I never thought the filibuster of Estrada, etc., was unconstitutional, just that it was way-unjustified on the merits.)
My post, you'll note, was really a plea to journalists, who write up the "who's up, who's down" accounts of the nominations processes. I think they should be sure that they provide the appropriate context -- which includes, I think, previous statements and positions with respect to the filibuster -- for commentators' and Senators' (left or right, GOP or Democrats) statements and moves in the upcoming show, a show that will include much of what Paul Horwitz once quite correctly called "bullshit."
Posted by: Rick Garnett | Apr 10, 2010 9:20:53 AM
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