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The 11th Falsehood

Media Matters has compiled a list of ten falsehoods surrounding the filibuster of judicial nominees. The ten falsehoods are:

Falsehood #1: Democrats' filibuster of Bush nominees is "unprecedented"

Falsehood #2: Bush's filibustered nominees have all been rated well-qualified by the ABA; blocking such highly rated nominees is unprecedented

Falsehood #3: Democratic obstructionism has led to far more judicial vacancies during Republican administrations than Democratic administrations

Falsehood #4: "Nuclear Option" is a Democratic term

Falsehood #5: Democrats oppose Bush nominees because of their faith, race, ethnicity, gender, stance on abortion, stance on parental notification ...

Falsehood #6: Public opinion polling shows clear opposition to judicial filibusters, support for "nuclear option"

Falsehood #7: Filibustering judicial nominees is unconstitutional

Falsehood #8: Clinton's appellate confirmation rate was far better than Bush's rate

Falsehood #9: Sen. Byrd's alterations to filibuster rules set precedent for "nuclear option"

Falsehood #10: Democrats have opposed "all" or "most" of Bush's judicial nominees

The explanation and documentation of each of those ten falsehoods is worth your time and is commended to your attention.

There is an eleventh falsehood as well. That falsehood is that the nuclear option will only halt filibusters of judicial nominees. Bill Frist is making that argument:

Senate Majority Leader Bill Frist pledged Tuesday that any effort by Republicans to ban Democratic filibusters of President Bush's judicial nominees would not apply to filibusters on legislation.

"There is no need for change in relation to legislative matters," Frist said in a statement issued before GOP senators met for their weekly policy meeting.
But Democrats quickly questioned whether other future Republican leaders would do the same if Frist opens the door by changing the rules to ban judicial filibusters…

Reid suggested last week that getting rid of the legislative filibuster could be Frist's next target if he wins on the judicial filibuster. On Tuesday, he suggested that Frist might also stop senators from blocking other kind of presidential nominees like John Bolton, Bush's nominee for United Nations ambassador.

Democrats are considering whether to try a filibuster of Bolton, who has been painted as an imperious hothead who dressed down junior bureaucrats and withheld information from his superiors in his current job as the State Department's arms control chief.

"If they're going to do it with judges, why can't they do it with Bolton and other nominees?" Reid said.

Deputy Majority Leader Mitch McConnell, R-Ken., said he hoped that Democrats would not filibuster Bolton. "If they don't like him, they can vote against him. But I think filibustering him is not a good idea," he said.

McConnell also said Republicans aren't going to strike the legislative filibuster. "There is no one I know of on our side who wants to get rid of the legislative filibuster," he said.

It seems inevitable that the ban on filibusters will extend first to other nominees and then to legislation. Under the current logic of the GOP, the constitutional will require it if a majority of Senators says so.

Josh Marshall has noted that the use of the nuclear option is predicated on the GOP being willing to continence a lie about the constitution:

[I]t is worth observing and considering the fact that every Republican senator certainly knows that the proposition they're about to attest to is quite simply a lie…

the Republican caucus, along with the President of the Senate, Dick Cheney, will find that filibustering judicial nominations is in fact in violation of the
constitution…

Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

If the constitution prohibits the filibuster of judicial nominees, what is the argument that the filibuster is permitted for other nominations?

The power of the executive and the Senate is the same in both cases. Article II, Section 2, Clause 2 of the Constitution says:

He (The executive) 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...

The advice and consent language is applicable both to judicial nominees and to other “officers of the United States.” If that language prohibits filibusters with regard to judicial nominees, it must also prohibit filibusters of executive branch nominees who require Senate confirmation. If the constitution prohibits the filibuster of Janice Rogers Brown, it also prohibits the filibuster of John Bolton.

The same type of constitutional argument applies with equal force to eliminating the filibuster of legislation. Where does the power to filibuster legislation come from? It comes from Senate Rules. The constitution delegates the power to make Senate Rules to the Senate. Article I, Section 5, Clause 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

In arguing that the filibuster of judicial nominees is unconstitutional, Bill Frist and others have noted that Article II, Section 2, Clause 2 specifically provides for a super majority (two-thirds of the Senate) to approve treaties but that the Constitution is silent as to the number of votes needed to provide advice and consent for a judicial nominee. That silence, they argue, means a simple majority.

In Article I, Section 5, Clause 2 the constitution provides for a super majority (two-thirds) to expel a member but is silent on the number of Senators needed to “determine the Rules of its Proceedings.” By the very same logic now employed to support the unconstitutionality of the filibuster, all that is needed to change the rules of the Senate is a simple majority. The Senate Rule providing for a super majority to limit debate on legislation would be unconstitutional on the same grounds, and by the same logic, as the GOP is about to use to hold the Senate Rule allowing filibusters of judicial nominees to be uncosntitutional.

Thus, when Democrats decide to filibuster legislation, a simple majority of the Senate can determine that the rules of the Senate do not permit it based on the constitutional power to determine its own rules. Please note that having rules that can be changed at will by a temporary and shifting majority of Senators is to have no rules at all.

The logic of the Republicans with regard to the filibuster of judicial nominees leads inevitably to the elimination of all rules which a majority of Senators choose to set aside.

Some people favor the elimination of the filibuster for all purposes. Mark Kleiman:

I don't think there's much of a case for the filibuster. Super-majorities usually work against progressive causes. In an increasingly corrupt system, increasing the blocking power of minorities makes shakedowns more effective. The Constitutionally-mandated rotten-borough apportionment of the Senate makes giving the senators from the twenty-one smallest states power to block any piece of legislation that much less attractive.

In this regard, I see no case whatever for distinguishing judicial nominations from the rest of the Senate's business. The Constitution doesn't distinguish, so if we're going to get rid of the effective super-majority requirement created by the filibuster, we ought to get rid of it across the board.

That is a seductive argument to those of us who would like to see such legislation as universal health insurance enacted and realize that it is impossible to do so (in the foreseeable future) if 60 votes in the Senate are required.

Nonetheless, it is impossible to eliminate, or preserve, the filibuster or any other rule or procedure if a simple majority of Senators may change the rules as they go along.

Kleiman continues:

But it seems to me that the "nuclear option" question isn't really about the filibuster, or about judicial filibusters, at all. It's about cheating. The Senate, acting under Constitutional authority, has created rules for itself. Those rules include a provision that changing the rules requires a two-thirds majority. (Requiring a super-majority for rules changes seems to me sound, since otherwise there would be in effect no rules at all that a temporary majority had to respect.)

The "nuclear option" involves the Vice-President, acting as the President of the Senate, making a clearly false decision about what the current rules are; at least, it never occurred to the Democrats to argue that the Abe Fortas filibuster was unconstitutional, and then having his false decision sustained by a simple majority vote. (As the old Yiddish proverb has it, "One lies, and the other swears to it.")

Supporting the nuclear option will have the effect of eliminating cheating. If there are no rules, then no rules can be broken. The question is whether or not it is desirable for the Senate to have no rules.

Posted by Dwight Meredith at May 19, 2005 09:01 AM | TrackBack