Dada is the sun, Dada is the egg. Dada is the Police of the Police.

11/02/2005

To filibuster, or not to filibuster?

Working from the premise that Alito is unacceptable and must be blocked, the real question is: how?

I've outlined one strategy below. I still think the goal should ultimately be to defeat Alito in the "up or down vote" the GOPers like to demand, but it will take time to drum up enough public opposition to him - time we might not have (Bush wants him confirmed before the New Year). Unless...

The filibuster option is starting to look a little more attractive (and plausible) to me. I haven't come to any solid conclusions, but what's nice about the filibuster is that, as Neil pointed out, you only need 41. Could we get 41? I don't know, but at this point it's almost certainly going to be easier to get 41 for a filibuster than 51 "no" votes on Alito (which is probably not even possible yet).

Everyone seems to assume, though, that a filibuster would trigger the so-called "nuclear option" (i.e., a rules change that would prohibit judicial filibusters altogether), thus clearing the way for Alito's confirmation.

I'm not so sure.

It's important to appreciate just how drastic a step this would be (it ain't called the "nuclear" option for nothing), and how questionable the legitimacy of such a move would be.

It isn't just a simple rules change. Normally, changing the rules requires a 2/3 majority, or 67 senators. Obviously, there's no way the GOP could get that many senators to "go nuclear". To get around this, the Republicans have to claim that judicial filibusters are not only a bad idea and should be eliminated - they have to claim that these filibusters are inherently unconstitutional. This, if I understand things correctly, would only require the support of a simple majority (51).

Of course, we're all wondering how judicial filibusters could be construed as being unconstitutional. Needless to say, there's nothing explicit in the Constitution prohibiting them. But hey, that's okay - we're not "strict constructionists," after all! I'm willing to listen if someone wants to argue that the Constitution prohibits judicial filibusters by implication.

The problem is, no one has made an acceptable case for this claim. There are two main lines of argument: (1) that allowing judicial filibusters creates a de facto 3/5 (60 vote) threshold for confirmation of judges, while the Constitution only requires a simple majority; (2) that "the Constitution calls for the Senate to advise and consent on the President's judicial nominees. And with Democrats blocking floor votes on these nominees, the Senate cannot do its duty" (link).

Let's take the second one first, because it's more easily dismissed. You might as well argue that the Senate is required to confirm any judge that is nominated, because otherwise they're not consenting like the Constitution told them to! And anyway, the Constitution doesn't order the Senate to advise and consent; it says that the president is to nominate judges "by and with the Advice and Consent of the Senate." That's "advice and consent," not "advise and consent" - nouns, not verbs. Nitpicking? Maybe. But what's good for the goose and all. The Constitution places a condition on the president's ability to nominate judges - namely, that he must have the consent of the Senate.

Little brother Limbaugh and other wingnuts claim that
The Senate does not have coequal authority with the president on judicial appointments as the advice-and-consent function was not intended to confer veto power on the Senate.
Actually, veto power over judicial appointments is precisely what the advice and consent clause confers to the Senate. If A can't do X without B's consent, then B has veto power over A's doing X. To use an uncomfortable analogy, the law says that a man cannot have sex with a woman without her consent. How can this be construed as saying anything but that a woman has veto power over whether or not a man has sex with her?

So much for (2).

(1) isn't as stupid as (2), but it is still problematic. Essential to the GOP's "nuclear option" is that the rule change would be limited to judicial filibusters only. They insist that legislative filibusters wouldn't be affected, and in fact most nuclear proponents go out of their way to voice their support for legislative filibusters. But the exact same reasoning that they use to argue that judicial filibusters are unconstitutional would apply equally to legislative filibusters.

The Constitution doesn't explicitly state how many votes are required to confirm a judicial nominee, but Republicans argue that since the Constitution does explicitly state that a 2/3 majority is required for other matters, the fact that it doesn't say this with regard to judicial appointments is not an accidental omission, but rather a clear indication that they only intended for a simple majority to be necessary. And this actually does make sense. Here's the relevant clause:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States
So yeah, this clause says 2/3 are necessary to make a treaty, and then talks about judicial nominees in the same damn paragraph without specifying that anything more than a simple majority is needed. So arguably, the Framers meant that the consent of the Senate would be considered granted as long as there are more Yeas than Nays (not that their intention should matter - we're not believers in the "original intent" dogma, of course! - but let's just play by the other side's rules for the time being).

The same basic argument can easily establish, however, that the Framers also intended that passing legislation would require only a simple majority. Check out Article I, Section 7, Clause 2:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.
So this specifies that a 2/3 majority is necessary to override a veto ... but it doesn't say that anything other than a simple majority is necessary to pass the legislation in the first place! Thus by the same chain of reason that led us to conclude that only a simple majority is required for judicial appointments, we can conclude that only a simple majority is required for general legislation.

But if the possibility of a judicial filibuster creates a de facto 3/5 threshold for judges, then by the same token the possibility of a legislative filibuster creates a de facto 2/3 threshold for legislation! And since the Constitution dictates that only a simple majority is needed for both judges and for legislation, if the de facto 3/5 threshold for judges is unconstitutional, so is the de facto 2/3 threshold for legislation!

Long story short: if the judicial filibuster is unconstitutional, so is the legislative filibuster. The former cannot be jettisoned while the latter is retained.

This alone doesn't force us to conclude that the nuclear option isn't proper, but it does demonstrate that it is much, much more radical than Republicans are pretending it is, as its underlying rationale challenges the constitutionality of the filibuster itself - it is not limited to judicial filibusters. It simply makes no sense for Republicans to simultaneously argue that judicial filibusters are unconstitutional but legislative filibusters are not.

*****

So what's the point of all this? The "nuclear option" is being treated much too casually, as a mere rules change, rather than the radical proposal that it is. The more widely understood this point becomes, the less likely it is that the GOP will be able to convince 51 senators to sign on to this craziness (though obviously it is still possible). Most of their senators won't give a damn, but the GOP still contains a handful of halfway-sane members who would probably be reluctant to do this, especially considering it could come back one day to bite them in the ass, if they ever return to the status of minority party. Will they really be willing to "go nuclear" just to save a nominee they probably don't much care for in the first place? Maybe, but maybe not. (And even if they do, it might be possible for Democrats to challenge the legitimacy of the move in court - but here my 'expertise', such as it is, runs out; I have no idea if this could actually be done.)

One final point (if anyone is still reading): the very idea that the Democrats shouldn't use the filibuster because the GOPers will nuke it is kind of, well, stupid, if you think about it. By this rationale, they should never use it, because whenever they do, it risks getting nuked. But if they never use it, it might as well not exist! The effect would be as if it had been nuked. Yeah, we'll still technically have the filibuster, but what's the point in having a weapon if you're never going to use it? That's as good as not having the weapon at all.


(Cross-posted at Liberal Street Fighter.)

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