Patterico's Pontifications

5/25/2005

Professor Bainbridge Is All Wet on the Filibuster Capitulation

Filed under: Judiciary — Patterico @ 12:05 am



Stephen Bainbridge supports the filibuster capitulation. He is all wet. Here’s why:

Bainbridge says:

The filibuster is a profoundly conservative tool. It slows change by allowing a resolute minority to delay – to stand athwart history shouting stop. It ensures that change is driven not “merely by temporary advantage or popularity” but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule?

That is fine, but I am not a conservative in the Bainbridgian “oh my God let’s not change anything too quickly!” mold. I am perfectly fine with radical ideas if I believe they will achieve my goals. In the context of the fight over judges, the goal is simple: returning to the people the power to decide for themselves how to handle controversial questions that are not covered by the Constitution.

Bainbridge’s error is to overlook the significance of this issue. I don’t have time to explain again why a principled conservative judiciary is important. I have discussed this many times, and so have countless others. By now, either you get it, or you don’t. I discussed it briefly in this post:

Liberal judges nowadays base their decisions on fuzzy concepts such as living Constitutions, evolving standards, and my personal favorite: “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

. . . .

When we trust 5 of 9 lawyers (a majority of the Supreme Court) to assign a subjective meaning to such vacuous phrases, and allow that subjective meaning to trump legislation passed by duly elected legislators, “judicial activism” is too tepid a phrase to describe the result. Try “judicial tyranny.”

For more, read any Scalia dissent in any abortion-related case.

The battle over judges is far more important than preserving some institutional roadblock that makes sure nothing happens too fast. We can’t afford that brand of “conservatism,” because we are in crisis mode. The imperial judiciary is taking away our right to govern ourselves, one issue at a time. We must take drastic action, or we’ll find ourselves under the rule of a set of Platonic philosopher-kings — judges accountable to no person, and subject to no principle except the day-to-day whims of their delicate, refined, elitist sensibilities and consciences.

Place this crisis against the need to retain the judicial filibuster. There is no contest.

And Bainbridge’s analysis gets worse than that:

Proponents of the “nuclear option” claim to believe that abolishing the filibuster could be limited to judicial nominations. It’s a coin flip as to whether this is naive or disingenuous.

Bainbridge appears not to understand why the judicial filibuster is different: it is unconstitutional. The Constitution specifies when a supermajority vote is required, and it sets forth no such requirement for the Senate’s “advice and consent” duty — so requiring more than 51 votes to confirm judicial nominees is contrary to the Constitution. There is no slippery slope.

Let’s hope Professor Bainbridge’s post was the result of an evening spent oversampling bad wines to review on his wine blog.

17 Responses to “Professor Bainbridge Is All Wet on the Filibuster Capitulation”

  1. Speaking of wines ……………..

    Paul Deignan (ee931a)

  2. Since you’re up, P, you might check out Captain’s Quarters. Ed noticed that Bolton’s gotten his filibuster removed today. Maybe it was part of a package deal…

    That will make it a little easier to swallow. But not much.

    See Dubya (cfff60)

  3. In televised remarks I saw, Sen. Graham strongly hinted that Bolton would now be confirmed. I have no doubt that was part of the deal.

    To hell with Bolton. The judges are more important.

    Hey, you wanna guest blog for me next week?

    Patterico (756436)

  4. But more to the topic, “advice” and “consent” does not specify any sort of vote–none is needed specifically.

    For example, the President could visit with Senate leaders over a nice glass of Merlot and discuss the merits of a nominee. That would fullfill the advise requirement as long as the majority of the Senate agreed i.e. did not vote that this did not satisfy “advice”.

    Similarily, “consent” could be as simple as the Senate deciding to vote only in the case of objection within a certain time frame–the Senate decides what constitutes advice and consent.

    The point being that there is nothing sacrosanct about the filibuster one way or the other.

    Paul Deignan (ee931a)

  5. A little bit, yeah. I’m pretty busy here.

    Bolton’s the cherry on top of a sh*t sundae. You’re right the judges are more important–their flights of fancy have actually made international law and law in other countries important to us. Which is why we need someone non-squishy in there to deal with all this, and that’s why I’m a little bit happy about Bolton.

    See Dubya (cfff60)

  6. You may get a surprise on Bolton. Just maybe he will get voted down.

    Davod (612e49)

  7. PS.

    The why can’t we just get along crowd has been the death of many civilizations. The seven scab Republicans moved into this category when they decided protecting the comity of the Senate was more important than the constitution.

    Davod (612e49)

  8. The seven Republican “Chamberlains” who think they have saved the Republic, will be reviled as very silly people before this is all over.

    Boman (de7e0a)

  9. Bainbridge isn’t that type of conservative either.

    Think about how he wants to radically undo immigration laws.

    The Angry Clam (f05866)

  10. Here’s my analytical take (I’ve posted this eleswhere):

    I read this agreement as a complete cave by the Democrats and a complete win by the Republicans. Let me explain.

    Forget parsing the agreement as if you were going to litigate over it. That’s not what this is about. The Democrats would not have come to the table if Frist didn’t have the votes. This piece of paper is meant to give the Democrats something to wave over their heads and cry, “Peace with Honor”.

    Play out the scenarios.

    a. Pryor, Owen, and Brown get quick confirmations, per this agreement.

    b. Frist brings up Saad, Griffin, Neilson, and McKeague — one by one. Will the Democrats fillibuster them? Of course not — at least not to the point of winning a cloture vote. Indeed, today’s WSJ quotes Reid as predicting, “that all would be easily approved.” And, the Hill has this: Reid added that other Michigan judges nominated for the sixth Circuit “are going to be approved.” Frist said he expected other stalled nominees, Richard Griffin, Susan Nielson, David McKeague, and Thomas Griffith, to get votes.
    The Democrats cannot do elsewise, lest they call into question their good faith (they can hardly call the remaining four, extremists, having watched the first three sail to easy confirmations).

    c. Bolton gets his up or down vote (and wins, with some Democrats voting, AYE). Again, the Democrats dare not fillibuster.

    d. Bush picks his first Supreme Court nominee from someone who has been previously confirmed by the Senate (like one of these first three — probably Brown). Again, no chance of a fillibuster because all have agreed they’re not “too extreme”.
    Remember, this agreement is a political document, not a legal one. If the Democrats misbehave, Frist will call them on it and the drama will play out again on the public stage. A fillibuster will invite a cloture vote. At least two of the seven Republicans will feel pressured to make a finding of fact that the Democrats have not acted in good faith. Hence, they would be obliged to vote AYE for the Nuclear option (50 + Cheney = win).

    My prediction: There will be no more filibustering of Presidential nominees — Full Stop.

    The only reason the Democrats cut a deal is that they knew full well theirs was a losing hand. Frist had the votes and all were headed to an accounting. This deal provides some face-saving and averts an ignominious defeat.

    The actual debates were far more painful to the Democrats than to the Republicans. Not only did the Republicans have the votes — they had by far the better arguments. The Republicans kept throwing the Democrat Senators own words back at them, rubbing their noses in their hypocricy. Not fun. They will not willingly go through this again, especially now that they’ll have affirmed the judges they demagogued against the most. Four or five days of non-stop debate by the Senators themselves is enervating and incredibly costly. Crisis averted, they won’t do it again.
    But, Frist has no choice but to bring up all nominees to floor. His political future depends upon his following through (and Bush is relentless). And if the Democrats force a cloture motion (by more endless debate) on any remaining nominee they force their seven “moderates” to make a hard choice: honor or party. If these seven did hang with their party the seven “moderate” Republicans would face a similar choice: dishonor or party. And it would only take two of them to make a finding of fact (that the Democrats were “unreasonably” filibustering) for the Nuclear option to pass (50 + Cheney = win). And all of this would play out again on the national stage and the Democrats certainly don’t want that.
    So how will this play out, you ask? Quietly, I say. All seven of the nominees that have been voted out of committee will get a vote by the full Senate. Mind you — they won’t all necessarily be confirmed. There may well be a little log-rolling behind the scenes. But they’ll all get their votes.

    Who wins? Well Frist, clearly. He’ll deliver the up/down votes. And all fourteen of the “moderates” win as well.

    Who loses? Reid & Co. They get nothing out of the deal — except some cover. They didn’t actually have to commit suicide on national tv.
    Now, you can ask if this calculus was what was driving this deal or whether this is an unintended effect. Likewise, you can ask if Frist yet knows he’s won and Reid that he’s lost. But in the end it makes no difference: the facts on the ground are the facts on the ground.

    Norman Rogers
    Greenwich, CT

    Norman Rogers (8f9e08)

  11. Bainbridge’s wet.

    TJ Jackson (708a0c)

  12. Norman, if Frist had the votes, why did the seven make the deal? Logically, the only answer that makes sense is that he didn’t have the votes. On that linchpin, your entire reasoning collapses.

    Patterico, I emailed Bainbridge about this. He wasn’t oversampling wines. He really believes what he’s arguing.

    antimedia (edc768)

  13. Patterico, I emailed Bainbridge about this. He wasn’t oversampling wines. He really believes what he’s arguing.

    Heh. Did you actually ask him if he was drunk when he wrote his post?

    Patterico (756436)

  14. Patterico,

    The “principle” of an up or down vote is nice–very effective as a political slogan. But don’t confuse yourself, it is not a true principle. On closer examination it is more like brass than gold.

    Don’t make the mistake of projecting enthusiasm for the core principles (pro-life/anti-activism) up into this standard of fairness. A call for an up or down vote is enough to sway the middle ground, but it will not radicalize anyone. The polls bear this out.

    In the 2006 elections for the GOP to win, it cannot be seen as abusing its power (or being ineffective in the view of its base). So far we are doing well.

    Paul Deignan (e01869)

  15. “I am perfectly fine with radical ideas if I believe they will achieve my goals.”

    Tyranny was the biggest common concern of the founding fathers. That’s why legislative conservatism is built into our government. But it is the executive, particularly under the current bureaucratic (read: politically insulated) administrative power structure, that has the means and the wherewithal to be radical. It is the exec that is therefore the biggest potential source of tyranny. The legislative branch is, by design, stymied by diversity, and the judicial branch, compared to the other two, can’t actually do much of anything.

    Scaling back the judiciary’s interpretive latitude to prevent tyrrany?

    Okay, you have a liberal’s tentative agreement on that.

    But then what of executive tyranny? Examples could include the EPA’s tortured interpretation of the Clean Air and Clean Water Acts (where are the “textualists” there?), or the secrecy of the FCC in conglomerating the media or going after public broadcasting? Essentially falsifying intelligence while the 9/11 dust was still settling?

    Increasingly, your views are supported not by the propriety of the actions within the institution, but by the rightness of the cause. But, at least in the legislature, that alone does not, and should not, get you there. The filibuster is not an aberration but one tool in service of that concept.

    biwah (f5ca22)

  16. […] energy prices. It is beyond the scope of this post to explain why, but it has to do with the people’s right to govern themselves […]

    Patterico’s Pontifications » Commissar Has Lost It (0c6a63)

  17. […] one of them. (I have already responded to the arguments Professor Bainbridge did make, in this post.) We’ll revisit this issue […]

    Patterico’s Pontifications » Professor Bainbridge Gloats Early (0c6a63)


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