Filibuster of Judicial Nominees
One point that I heard on C-Span that made sense to me re: the judicial filibuster is that there is no negotiation available on a confirmation vote. Unlike legislation, which can be negotiated and watered down to be acceptable to the minority, or amended to include some pork for the filibusterers, there is no similar option on appointments, it is simply yes or no. There is no negotiated conclusion to the filibuster possible, so you are simply stuck with minority veto.
In that context, then, I think that filibusters against nominees is an abuse of power and an abuse of the filibuster, because it is thwarting the will of the majority of Senators.
posted by Jrudkis @ 9:59 AM
6 comments
6 Comments:
I find the lack of clarity regarding the senate rules troublesome. You can make whatever argument you like about the use of the filibuster on judicial nominiations, but the fact is that it is within the rules of the senate.
What is less clear is the validity of the method proposed to change the rules to eliminate the judicial filibuster. My understanding is that a previously adopted rule required a super-majority to change the rules, but that the Republicans were claiming that such a rule cannot bind a future senate. Therefore, they could simply declare the judicial filibuster out of order with a simple majority and strike the judicial filibuster from the rules.
Regardless of the rightness of this position, it was debatable in the minds of many senators. Why is this? Why follow any previously adopted rules if they are not binding? Either formally adopt or strike the rules previously adopted and get on with the business of governing. This way there would be no "nuclear" (or "nucular") option, there would be no "constitutional" option, there would simply be an option within the rules not subject to debate. Do the math and draw your swords.
One way to compromise, if not negotiate, would be to find a more acceptable judge to nominate.
The Filibuster is a Senate construct that is not in the Constitution. The Senators have simply agreed to allow this option to exist as an exercise in fidelity with each other. It was agreed to for various reasons, but mainly because the Senate was designed to be collegial and deliberate in its actions. The Senate was never designed to be representative of a democracy. Its purpose was to protect the interest of states, not the people.
Over the last 200 or so years, the minority party has been able to take advantage of this agreement without overstepping the bounds where the majority stops agreeing to it. The Majority has always been able to take it away, but left it in place because it recognized that it would some day be in the minority. But at the same time, the majority was not willing to punt the power of the majority for the future use of a filibuster.
So, it is a balancing act. Use the filibuster on key issues, and use it sparingly. When the majority is no longer willing to take it, use it less, or cave. It will be the rare issue that 51 senators feel strongly enough to kill the filibuster forever.
Currently, we have the most monolithic parties ever in the senate. There has never been a time where the republican party, for example, were so closely aligned in their beliefs. The same is true of the democrats too.
So the Democrats are now using a filibuster against a unified majority party that has the ability and will to end the practice altogether. The Republicans know that they will be in the minority someday, but enough believe that the democrats are so wrong in the use of the filibuster to block 10 judges that they are willing to punt the practice altogether. And the Republicans have the power to do that.
I don't intend to dispute your position on whether or not a simple majority can end the judicial filibuster. I will only say that it is subject to debate, and I don't think that it should be.
From the Harvard Journal of Law & Public Policy:
'In addition, the Senate cloture rule provides that for any change to the Senate rules (including the rules governing debate), one-third of members present and voting plus onecan prevent the Senate from resolving a filibuster and taking a vote. And Senate Rule V declares that these rules are perpetual: “The rules of the Senate shall continue from one Congress to the next Congress
unless they are changed as provided in these rules.” At issue is whether the Senate cloture rule is carried over from one Congress to the next by Rule V and binds successor majorities. If so, the
conclusion would seem to be that absent a change of heart among a
sufficient minority, even a substantial majority is helpless to
overcome a filibuster on a rules change.'
The paper quoted goes on to conclude as you do that a simple majority can end debate and end the very option to filibuster judicial nominees. The point is, that if there were not some ambiguity in the rules, such discussions would not be necessary, and that they should not be necessary.
Except that any rule that requires more than a 50% majority would always be challengeable by a simple majority unless there was an actual Constitutional Amendment. It is only because it is in the interest of both parties to maintain the rules as they are that they are followed, and that changing any of them like the filibuster rule was to be changed threatens all of them that the rules have held as long as they have.
The Republicans however apparently felt that in this instance losing all the rules were worth the price rather than have the minority dictate these nominations in a way that had never really been done before.
So even if the rules were more clear, it would not have made a difference in this case.
"Except that any rule that requires more than a 50% majority would always be challengeable by a simple majority unless there was an actual Constitutional Amendment."
Does that hold if the rule were passed by the same Senate trying to challenge it, or does that only hold if the rule were passed by a previous Senate?
It holds for the Senate at any time, because the Constitution allows the Senate to make its own rules. There is no higher authority to go to. If 51 Senators want to take their ball and go home, there is no one to tell them they can't.
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