Patterico's Pontifications

11/18/2014

Patterico “Evolves” on the Judicial Filibuster

Filed under: General — Patterico @ 7:26 am



“If you choose not to decide, you still have made a choice.”
— Rush, “Freewill”

It is always amusing to watch people cynically change their views on the filibuster. We saw an example of that recently with the New Republic, which ran a gazillion pieces decrying the filibuster and praising the nuclear option — right up until the last election, at which point they displayed a Strange New Respect for the filibuster.

But people’s views can indeed honestly evolve, and I think it might be useful to disclose one way in which my own views have evolved — and to announce it at a time (now) when it doesn’t help my side ideologically in any way. Indeed, it could hurt it.

So, apropos of nothing, let me summarize the change in my opinion, which has to do specifically with judicial filibusters, and not filibusters generally.

OLD POSITION: The judicial filibuster is constitutionally infirm because the “advice and consent” clause requires an up or down vote for any nominee. The “nuclear option” is constitutionally required for votes on judicial nominees.

NEW POSITION: The Senate has the right to set its own rules. A majority of Senators has the power to do anything it wants, including honor filibusters, reject filibusters, or change filibuster rules. Thus, the “nuclear option” is not constitutionally required for votes on judicial nominees, but it is always available to a majority.

As you can see:

1) This has nothing to do with the traditional filibuster.

My view on that has never changed: if the Senate wants to use the traditional filibuster, it can. My view on the judicial filibuster is now in line with my long-held view on the filibuster generally.

2) The only difference is that now I don’t think the nuclear option for judicial nominees is constitutionally required.

Ideologically, this should make no difference at a time like now, when the party most in line with my views is about to control the Senate with fewer than 60 votes, at a time when the opposing party controls the Presidency. The only way it could make a difference is in this incredibly unrealistic scenario: Obama nominates someone so awesome from our perspective that a majority of the GOP wants to push the nomination through, but the Democrat minority wants to filibuster the nomination. In that unthinkable scenario, I could not (consistent with my new position) advocate that the nuclear option was constitutionally required, but merely available to the majority.

So you see, I am actually changing my mind for principled reasons: namely, I have thought about it more. Let me explain.

When I previously advocated that the nuclear option was constitutionally required, it was because I believed that the “advice and consent” clause required an up-or-down vote from the whole Senate. Somewhere in the back of my mind, though, there was always a voice whispering: doesn’t the Senate have the right to set its own rules? Usually, I think, I would discount that by pointing out (correctly) that the current Senate is not bound by rules that it did not adopt.

And I still believe that. The main difference in my thinking, and it is a subtle one, is that a majority of Senators may behave as if they are bound by those rules.

In my view, the majority can do whatever it wants, but is not required to. The majority is not bound by any tradition of filibusters, which tradition is inconsistent in any event. Nor can a majority be bound by rules that say they need a supermajority to change the rules. However, a majority can choose to behave as if they are bound by these traditions, if they choose to do so for institutional reasons.

As the quote that opens this post implies, even if a majority of Senators chooses not to decide — i.e. chooses to allow a filibuster to go forward — they still have made that choice. And as long as they recognize that they have the power to change it, they may, for institutional reasons, choose not to exercise it.

This is going to come up again, and there will probably be times that my position slightly hurts me ideologically, and other times when it helps me a little. I figured I would say it now, when it doesn’t matter, so I wouldn’t be like those New Republic hypocrites.

15 Responses to “Patterico “Evolves” on the Judicial Filibuster”

  1. Ding.

    Patterico (9c670f)

  2. The filibuster has always been an extra-constitutional device, which is to say, the Constitution says nothing about it one way or another.

    It has always been purely a matter of comity — mutual respect and self-restraint, based upon a reverence for the historic tradition of unlimited debate that the earliest senators embraced and established in America from fairly muddled historical precedents elsewhere. Nothing else has enforced and sustained it.

    But in this current (about to expire) Congress, Harry Reid rang a bell that no Senate majority leader ever permitted to be rung throughout the history of the Republic. It can’t be un-rung, which is why every prior majority leader had resisted the spectacular temptation of doing what Reid did.

    Comity died then, and good wishes and nice gestures won’t resuscitate it.

    The filibuster is dead. Not just the judicial filibuster, but all filibusters. It’s not because of any obligation to vote that the Senate may have on presidential appointees, although a principled distinction could be drawn for limiting those only those specific filibusters that treated them differently from others. But Reid was not engaging in a principled distinction, he was engaging in raw partisan power. If he’d had a compelling political need to re-write the Senate rules through mid-term brute-force majority vote of the Democratic caucus in way that broke a legislative filibuster, he’d have quite as happily done that.

    The only current question is whether McConnell foolishly thinks he can disassemble the omlette. I’m very glum, because I think that’s exactly what he’s going to try.

    I feel like I’m watching Charlie Brown run toward the football again, but I can’t possibly warn him that Lucy’s already grinning on one side of her mouth as she prepares to snatch the football away once again.

    Beldar (fa637a)

  3. The Republic will be better off without the filibuster. McConnell would be a fool to attempt to restore it.

    Art Deco (ee8de5)

  4. The filibuster should have died when the Democrats used it on Bolton. If anybody, anybody at all, is entitled to an up and down vote it is the President’s choice for his mouthpiece in the United Nations. (Good thing he does not need advise and consent for his barber.) Reid did the country a favor when he exercised the “Reid option”. The Republicans would do well to keep it. Use the filibuster when it suits them; and ignore it when that suits them.

    nk (dbc370)

  5. My position on the judicial filibuster:
    1. No filibusters for judges appointed by a President from my party.
    2. Filibusters for judges appointed by a President of the other party.

    My position, BTW, is the same as Harry Reid’s. If I were Majority Leader, I’d make my position explicit, and say that I am simply modeling my position after Sen. Reid’s.

    I don’t think there are really any principles involved here, on any side. We ought to be forthright about what we are doing – it’s all just politics.

    A.S. (23bc66)

  6. As I was reading this post the thought that “you can’t put the toothpaste back into the tube” kept occurring to me. Then I saw in the comments that Beldar had beaten me to the punch with similar observations about bells and omelets.

    I don’t think I’m being cynical or hypocritical when I say I thought Reid was scum of the worst order when he destroyed the filibuster. But having gone where no Senate majority leader ever dared go, he exposed the fact that the filibuster was not about comity or reverence for the tradition of unlimited debate. It was about maintaining a sham of a facade of respect for those things while it was tactically advantageous.

    It would be dangerous to restore the judicial filibuster because that would just show McConnell isn’t dealing with reality. Instead he’d rather pretend the Senate has all kinds of respect for its traditions, when Reid has just demonstrated it has none at all.

    Steve57 (c4b0b3)

  7. Sure, Patterico, the judicial filibuster is consttitutional. I have always thought so.

    But is it wise policy? I say absolutely not, even if McConnell could get assurances that a future Democratic Senate would maintain it.

    I won’t explain here in this comment WHY it’s bad policy. But I will point out that you haven’t addressed that question.

    Andrew H. (6f1bd9)

  8. 4. …If anybody, anybody at all, is entitled to an up and down vote it is the President’s choice for his mouthpiece in the United Nations. (Good thing he does not need advise and consent for his barber.) …

    nk (dbc370) — 11/18/2014 @ 8:12 am

    It’s one thing I suppose for the President’s choice or UN ambassador. Even for a cabinet officer (of which a UN ambassador may or may not be member) so long as they’re White House advisers to the President. But when you get to department secretaries and assistant secretaries then the President and his nominee should not get so much deference. Executive branch departments aren’t created by the Constitution. They’re entirely creations of Congress and are supposed to be answerable to it. But this administration has practically been conducting a clinic in flipping the bird to the whole concept of congressional oversight.

    Of course, the Senate has gone along with this. One of the more egregious examples is Secretary of Labor Thomas Perez. Perez was accused of serious misconduct while he was an . One thing that is not in doubt is that while he was an assistant attorney general he illegally conducted DoJ business on his personal IT devices, then he refused to comply with congressional subpoenas and turn over these official documents when Congress was investigating his misconduct.

    Yet while Perez was refusing to cooperate with a congressional oversight committee’s investigation, the Senate confirmed him as Secretary of Labor?!?! The actual confirmation vote was by party line but we all know that’s boob bait for the bubbas. Enough Republicans crossed over on the procedural votes to guarantee he’d be confirmed.

    That’s how little regard they have for themselves and their advise and consent and oversight responsibilities. I suppose if they have so little respect for themselves it doesn’t matter what tools you give them including the filibuster. They’ll unilaterally disarm every chance they get.

    When you next get to judicial nominees then the President should get even less deference. The judiciary is a separate branch, and the appointments are for life. By all means Senators should filibuster if they give a damn about the country (they also should have done so in the case of Perez and a couple of other department secretaries, and those guys leave office when Obama does) but if with their outsized egos and enormous self-regard they still let Obama use them as doormats I can’t see the them standing up for something as unimportant as the country.

    Steve57 (c4b0b3)

  9. Filibusters stopped being about unlimited debate a long time ago. I’d like to see the Senate return to talking filibusters but with all senators required to sit through them. No more hiding in the cloakroom or local watering holes.

    crazy (cde091)

  10. I don’t think I’m being cynical or hypocritical when I say I thought Reid was scum of the worst order when he destroyed the filibuster.

    If Reid is scum, it’s because career politicians who haven’t practiced law in 40 years but who have a $6.7 million net worth are … curious.

    C’mon. Give each Senator 25 minutes to talk, which he can yield to someone more loquacious. The real work of Congress is done in committee. Floor debates are not that important. The commonweal does not benefit from Strom Thurmond reading from the phone book for 27 hours. That’s ‘unlimited debate’. It certainly does not benefit from ‘Cadillac filibusters’ wherein the Senator in question just stands and says ‘no’ every now and then. We have a bicameral legislature, the executive can veto legislation, Congress can sabotage authorizations with appropriation power, a component of the legislative power has been sheared off and allocated to regulatory agencies, and everything is subject to case law expounded by our officious judiciary. The notion that we need yet another impediment to accomplishing anything beggars belief.

    Art Deco (ee8de5)

  11. As for judicial nominees, here’s a suggestion: a constitutional amendment which would transfer advice and consent functions to state legislature bar for courts with multi-state jurisdictions, require that all federal judges face a retention-in-office referendum after four years on the bench and every twelve years thereafter, provide for a limited right of petitioned recall referendum, and institute mandatory retirement for federal judges at age 76. Congress would deal with just the multi-state courts and advice and consent for officials not appended to the courts would be limited to those who serve fixed terms (e.g. the comptroller-general or regulatory commissioners). You could have the attorney-general shorn of the investigatory services and serving a fixed and non-renewable term of four years.

    Art Deco (ee8de5)

  12. Nor can a majority be bound by rules that say they need a supermajority to change the rules.

    That question has been deliberately left undecided.

    Deciding it in the nagative – that a majority cannot be bound by rules that say they need a supermajority to change the rules – is the nuclear option.

    Sammy Finkelman (d22d64)

  13. What I might like is “off-the-floor” voting.

    Close the voting at 3 am each morning.

    Sammy Finkelman (d22d64)

  14. 2. Beldar (fa637a) — 11/18/2014 @ 7:59 am

    It’s not because of any obligation to vote that the Senate may have on presidential appointees, although a principled distinction could be drawn for limiting those only those specific filibusters that treated them differently from others.

    The big distinction , I think, is this:

    There are np amendments to be made on the matter of a presidential appointment.

    It’s an up or down vote.

    Now, you might want a little bit more time. (to investigate, to find out answers, to argue, to rally support)

    But Reid was not engaging in a principled distinction, he was engaging in raw partisan power. If he’d had a compelling political need to re-write the Senate rules through mid-term brute-force majority vote of the Democratic caucus in way that broke a legislative filibuster, he’d have quite as happily done that.

    The only current question is whether McConnell foolishly thinks he can disassemble the omlette. I’m very glum, because I think that’s exactly what he’s going to try.

    I feel like I’m watching Charlie Brown run toward the football again, but I can’t possibly warn him that Lucy’s already grinning on one side of her mouth as she prepares to snatch the football away once again.

    Sammy Finkelman (d22d64)

  15. Sure, Patterico, the judicial filibuster is consttitutional. I have always thought so.

    But is it wise policy? I say absolutely not, even if McConnell could get assurances that a future Democratic Senate would maintain it.

    I won’t explain here in this comment WHY it’s bad policy. But I will point out that you haven’t addressed that question.

    I haven’t, but I am less skeptical of it than I used to be. In large part that is because I used to have the attitude: “Elections have consequences and the president is entitled to his nominee absent something very unusual.”

    Now? I am interested in weakening the executive almost wherever possible.

    But I am totally open to your thoughts; to me, what is wise policy in this area is not a matter of hard and fast doctrine. One’s views on the Constitution should be (even if they evolve!).

    Patterico (9c670f)


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