Nuclear option, redux

Since the issue is apparently not going to go away unless or until McCain bows out of the '08 nomination fight, I have added some more thoughts to the ongoing saga here.

The rules and procedings clause: what it holds for judicial filibusters

Following on from my thoughts on the nuclear option (see Judicial filibusters - my take, 5/3/2005), and the subsequent discussion with Mark (a.k.a. Rock) in comments here, I'm involved in another related procedural dispute, in comments at ConfirmThem beginning here.

At the root of this dispute is a simple disagreement over what it takes to fulfill the requirements of Art. I §5 Cl. 2, which requires that "[e]ach House may determine the rules of its proceedings." The debate turns on whether that clause requires that a simple majority may at any time change its rule, or whether necessarily implicit in that clause is the power to impose supermajority requirements subsequent to the majority vote to adopt the rules. This has obvious relevance to the judicial filibuster issue: if §5 permits a simple majority to change the rules at any time, there is no need to argue that the filibuster is unconstitutional (adequately summarized, I don't think it is) to do away with it.

I think Mark's argument is an extremely strong one, and he cites United States v. Ballin, 144 U.S. 1 (1892) in support of it. None-the-less, I think my argument's right. Here, then, is my argument.

I continue to believe that Art. I §5 permits each chamber to pass both wise and also unwise (and even asinine) rules, including submajority and supermajority requirements. Obviously the Senate cannot pass a rule that binds future Senates, but it can adopt rules which require a formal process for the amendment of its rules for the duration that they are in force (usually, for the remainder of that Senate, and successive Senates which either take up - or, by tradition, fail to decline to take up - the same rules), and having adopted those rules, even if those rules require a latent or active supermajority, being the practical effect of the filibuster, the majority is bound by them.

The Constitution grants to each house the power to make its own rules. Like the Senate's power to consent to judicial appointments, that is a grant of power to the institutions, not to their individual members.

By tradition, when the House convenes for the first time in a new Congress, it explicitly votes to adopt a new set of rules; by equal tradition, when the Senate convenes for the first time in a new Congress, it implicitly accepts the rules extant in the previous Senate, unless those rules are challenged. In each case, although by different means, each chamber excercises its §5 authority to set its rules. This is a descriptive point, not a normative argument.

I'm more familiar with the Senate's rules than with the House's, but for reasons I will explain, I'm initially going to make my argument in terms of the House. It's easier to discuss this in terms of the House, because there is no filibuster: the House's rules have prohibited filibusters since at least the time of one of my personal heroes, Speaker Thomas B. Reed, over a century ago, and as a result, there is no latent supermajority requirement comparable to the cloture theshold in the Senate. Thus, assuming that the House Rules say nothing to the contrary, the majority can amend the rules of the House at any time during the House's session. However, when the House convenes, there is nothing in the Constitution that prevents the majority from adopting a rule that says "the rules of the House may be changed on the passage of a motion with the votes of 300 members" - that is to say, a supermajority requirement for rules changes for the duration of that Congress. If the House couldn't impose such a supermajority requirement, then it doesn't have the power it is explicitly given in §5, because it cannot set its own rules: there is some non-textual restriction on what substantive rules the House can pass. In other words: if the House isn't free to bind itself to a supermajority requirement, it isn't free to "determine the rules of its proceedings."

So how does this map a few yards north to the Senate? Like the House, the Senate enjoys the §5 power to determine the rules of its proceedings, and like the House, it has its own traditional method of excercising that power at the beginning of a new session. One of the rules the Senate adopted for about two centuries - by oversight or otherwise - permits a filibuster on various classes of business before the Senate, including motions to change the rules. Just as the House must be free to bind itself to a direct supermajority requirement for a rules change, the Senate must be able to adopt a latent supermajority requirement for a rules change.

The reason that changes to the rules can be adopted in January has nothing to do with the calender month: it is because until the Senate adopts its rules for that Congress, there are no Senate rules in force, and therefore, no way to filibuster. My point about the ability of the Senate to amend its rules in January isn't because it's January, but because January is when the Twentieth Amendment directs (in effect, at least) the new Congress to assemble, for the purposes of adopting said rules and conducting business. The filibuster can only exist once the rules that provide for it (more accurately, the rules that create the possibility of it) it have been adopted. However, just as the House could impose a supermajority rule on subsequent rules changes, the Senate can adopt a rule that governs or substantially effects the manner in which its rules are changed for the duration of the Congress for which the rules are adopted. And, just as with the House, if it does not enjoy that power, it enjoys something substantially less than the power accorded it by §5, to “determine the rules of its proceedings.”

I think there is actually more agreement between us all than might at first appear, insofar as I’m not opposed to any procedural means to change the rules and eliminate the filibuster - I’m only opposed to the commonly-mooted version of the nuclear option, the one that has the Vice-President rule that the filibuster is unconstitutional, which it is not, in my view.

Wikiquote update

Since I've put a fair amount of time into expanding Wikiquote's entry for Justice Scalia, I've felt particularly concerned by the fact that its formatting really needed attention, I just couldn't figure out any way to make it clearer. None-the-less, I've hit on an approach I think works. You can see the results at http://en.wikiquote.org/wiki/Antonin_Scalia.

Update: In the comments, some discussion about the nuclear option, hence the re-categorization.

In defense of of the Judges

Writing last week in opposition to the nuclear option (2005-05-03) I wrote:

"My position, in general, is this. I do not object in particular to the nominees being proposed."(§I ¶1)

The Los Angeles Times calls Brown "A bad fit for a key court". Brown's alleged dogmatism and a style bordering on vituperation earned her only a qualified rather than well qualified rating from the American Bar Association. Some committee members found her unfit for the appeals court. The New York Times editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone." People for the American Way President Ralph G. Neas described Janice Rogers Brown as the "far right's dream judge". Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" A list of organizations that oppose Brown's confirmation is given here.

"The things she says and does could lead other blacks to begin to think independently -- and that in turn threatens the whole liberal house of cards" (Liberals, race & History 5/24/05)

No victory at all for democrats

I'm going to write more about the nominees later today, if I get time, but I wanted to repost a comment I made in objectioon to people lionizing Harry Reid for his performance in the filibuster fight. I wrote a fairly scathing post about Reid's behaviour post-compromise, and was questioned why I was being so hard on Reid. Well, here's why.

The right are furious at this compromise. They are already talking about doing everything possible to remove Mike DeWine at the next election. What Reid's comments - loudly and intemperately claiming victory - will do is to pour gasoline on a smouldering fire. By attempting to rob Republican moderates of the ability to claim that this was anything other than a capitulation, Reid is either trying to, or may simply be too stupid to realize that this will be the effect, encourage the burgeoning calls for a purge in the GOP, which will remove the very moderates who facilitated this deal. At best - callously stupid. At worse - calculatedly pernicious.

Besides, I dispute the characterization that it's a "victory" for either side. Moderates on both sides can claim a limited victory, and partisans on both sides have deafeningly claimed their party's ignominious defeat. Much has been said about why the Democrats "won" this, and now I shall present my argument why they didn't.

This isn't a victory for Harry Reid - the GOP effectively agreed to not use the nuclear option for as long as the Democrats don't filibuster. Owens and Brown - for all the democrats bitter hostility - will both have their gavels within a week. If the Democrats attempt to filibuster another nominee, thus breaking this hard-won compromise, they will find public support much diminished next time, which means that they've peaked prematurely, scant months before a Supreme Court nomination fight.

Furthermore, while much has been made of Frist's motivations in bringing this matter to a head, it seems to me that Harry Reid was spoiling for a nuclear showdown. Perhaps because the Democrat base has been clamoring for a leader that won't compromise or give in, a leader with more essential "toughness" from their previous four candidates.

Much has also been made of Frist's "refusal to compromise". A compromise is when neither side gets everything they want - what did Reid offer to give up in his proposed "compromises"? Nothing. To my knowledge, Reid never offered to compromise - he demanded that Frist surrender, but for the sake of the cameras, he did so in the dulcet tones of Irish diplomacy, which made it appear that he wanted to compromise.

When, in fact, a compromise came, it came in spite of Reid, not because of him, and he proceded (as discussed above) to do everything he could to shipwreck the deal. Tell me how any of that is a "victory" for Harry Reid.

The Cato, on filibusters

The Cato Institute also appears to have picked sides (this is what I get for almost never reading their daily briefings, I'm sure I'm late on this one).

Anyway, the Cato's David Boaz writes today:

Republicans who once extolled the virtues of divided power and the Senate's role in slowing down the rush to judgment now demand an end to delays in approving President Bush's judicial nominees. Democrats who now wax eloquent about a "rubber stamp of dictatorship" replacing "the rights to dissent, to unlimited debate and to freedom of speech" in the Senate not too long ago sought to eliminate the filibuster altogether.

Republicans were right in those days. They should take advantage of the Democrats' being right today and return to protecting the rights of the minority. No party holds a majority forever, and some day Republican senators will need to use the filibuster again to stop big-government legislation and slow down a Democratic president's most liberal nominees.

Judicial filibusters - my take

I've commented many times in mostly every non-LJ blog I read, except my own, on
the filibuster business, so before they actually go ahead and do it - and they
are going to go ahead and do it, since both sides have now painted themselves
into a rhetorical corner from which there is no escape - let me just sum up here
my position on ending the filibuster on judicial nominations by the so-called
"constitutional" option.


Just before I begin, there is an excellent rebuttal of the Democrat position (i.e.,
that the filibuster is a well-established device for blocking judicial nominees)
that has been posted by Jeffrey D. King, who transcribed the Scalia speech I posted earlier today. Thanks to Jeffrey for finally prodding me into getting this post collated from my various other, and less structured, ramblings.

Before the Constitution was ratified, the United States was governed by the Articles of Confederation. The Articles established a Congress composed of representatives from each of the states, with each state having one vote. Significantly, the Articles imposed a supermajority rule on Congress's exercise of many of its powers.

The Articles' use of a supermajority rule argues strongly against [the] claim that the Framers used "passed" to mean "passed by majority vote." The Framers would have expected the Constitution to be interpreted against the backdrop of the Articles. Because the Articles employed a supermajority rule, the Framers would not have simply assumed that everyone would understand that legislatures always pass bills by majority vote. Thus, if the Framers had intended to mandate majority voting, they would have done so explicitly.