Misalliance of Convenience
One of the most “unhelpful” memes circulating through the blogosphere is that the Memorandum of Understanding between the seven Democratic senators and the Seven Dwarfs is some sort of “agreement,” as in a legal contract. Center-right bloggers — mostly lawyers — have proclaimed with appropriate head-shaking that even if the Democrats go right on filibustering every nominee who meets the “extraordinary circumstances” test (that is, any nominee nominated by George Bush), there is nothing the Republican members of the Gang of Fourteen can do, because the “agreement” allows the filibusters to continue but “prohibits” Republicans from voting for the constitutional option.
This is completely wrong, however; and a six-year-old argument between my wife, my liberal sister, and the conservative writer Brad Linaweaver demonstrates why the MoU will not last — and why we will likely see an actual vote on the constitutional option before the end of this year.
In 1999, at a party we were giving, my sister Julie and my wife Sachi got into a kafuffle about Dr. Laura Schlessinger. Sachi has always been a fan, but Julie hates Dr. Laura with a passion. In a moment, Brad had joined in — on the side of my sister and against Dr. Laura. After a few moments of listening to this, I interrupted everybody. “You two think you’re allies,” I said, pointing at Brad and Julie; “but the reality is that Julie hates Dr. Laura because she thinks Schlessinger is a hard-right conservative… while Brad hates Dr. Laura because he sees Schlessinger as a party-line feminist and a stalking horse for NOW. And any minute now, you’re each going to realize who you’re allying with, and that will be the end of the peace treaty!”
Unsurprisingly, the comity between Julie and Brad lasted exactly as long as that argument; the moment discussion turned to another issue, they found themselves on opposite sides once again.
The MoU is in fact nothing more than a temporary misalliance between seven different sets of hereditary enemies. It’s a purely political alliance of convenience; seven Democrats and seven Republicans have temporarily taken over the business of the Senate by agreeing to vote together. The Gang of Fourteen comprise:
* Utter hard-line Democratic partisans Robert Byrd, Daniel Inouye, and recent surprise Democratic water-carrier and failed Dairy Queen operator Ken Salazar;
* Liberal Republicans Lincoln Chafee, Olympia Snowe, and Susan Collins;
* Moderate Democrats Mary Landrieu, Joseph Lieberman, and Ben Nelson;
* Senate chauvinist John Warner;
* Squishy-middle Democrat Mark Pryor;
* A narcissistic exhibitionist from Arizona;
* And Center-right conservatives Mike DeWine and Lindsay Graham, who imagine that the constitutional option is already lost, so they need to cut the best deal they can.
What leaps out of that list is that there is nothing holding this group together except the temporary fear of a vote on the constitutional, or Byrd option — though how Robert Byrd became synonymous with the Constitution is a riddle the Sphinx might have asked. Even Stalin and Roosevelt had more philosophical agreement (such as a fine contempt for capitalism) than these Memorandum-signing Understanders.
Like the Julie and Brad Bash Dr. Laura show, this Dance of the Dithering Dwarfs will close quickly. In fact, the cracks already show: four of the seven Democrats voted against cloture on the John Bolton nomination, while three — Landrieu, Nelson, and Pryor — voted for it. Bolton was not covered by the MoU, but if there were any comity between even these fourteen, let alone in the Senate itself, it would have come out here on this frankly trivial nomination. (Do we really think that anybody, no matter how straight-talking, can “reform” the inherently corrupt UN?)
After a few more filibusters, it will be clear that there is as much of a split within the Gang of Fourteen, in terms of what exactly the Memorandum Understands, as there is between Bill Frist and Harry Reid. And when the Memorandum of Creative Misunderstanding comes crashing down around the Gang’s ears, it will be the work of a moment for all those in favor and all those opposed to beetle right back to where they were before this temporary detour. Each side will blame the other, and nobody will really care who “violated the agreement” first. We’ll just shake the Etch-a-Sketch and start over.
Whether the constitutional option then passes or fails may depend not upon fourteen but upon two: Arlen “trust but verify” Spector — and Democrat Ben Nelson, who is up for re-election next year in one of the reddest of red states.
“Whether the constitutional option”
Do you seriously think that filibusters are unconstitutional?
actus (3be069) — 5/28/2005 @ 8:55 pmOn nominees, yes.
On legislation, no.
I’m not a fan of indefinite holds or other shenanigans either. I’d prefer ‘failure to advise in a timely fashion’ to qualify as ‘consent’ even. The transition period between any two administrations has piles of lame ducks and lingering vacancies. Some minor ones go years IIRC. If there were three Supreme Court vacancies simultaneously under President Bush, the US government would grind to a complete halt even if he nominated three clones of Ruth Bader-Ginsburg or three Kennedys.
A “controversial judge” was held up 4 years – and consensus is that her nomination is NOT considered “extraordinary circumstances.”
The entire melodramatic lamentation over the sanctity of the fillibuster always seems to leave out the point that if any 5 felt that ‘the sanctity’ trumped the distaste felt over a perfectly ordinary nomination, then there could not be a rules change.
Al (00c56b) — 5/28/2005 @ 9:50 pmSometimes I believe the majority has used the filibuster, by the minority, as an alibi against taking an action needed but yet not desirable, like desegregation and antilynching. The stop order and other desultory ways of delaying action exist only at the pleasure of the majority, however piously they may maintain otherwise.
Walter E. Wallis (d3ba2c) — 5/28/2005 @ 10:18 pm“On nominees, yes.”
You’re going to have to explain this a bit more.
actus (3be069) — 5/28/2005 @ 10:29 pm“You’re going to have to explain this a bit more.”
Well, the Senate has a constitutional obligation to advise (which they are annoyingly freakin’ good at) AND consent on judicial appointments. The filibusters sole purpose (within the context of judicial nominations) is to prevent the Senate from consenting.
One of the disingenuous bits floating around is that with the filibuster in play, the majority needs 60 votes to confirm. This isn’t true. They need 60 votes to break the filibuster, which would then allow them to consent/confirm with a simple majority.
It would appear at first glance that the practical effect of this is that they do need 60 votes going into the vote, because they would need those 60 to break the filibuster and the assumption is that all of the 60 would vote yea on confirmation.
This isn’t necessarily true, though. The cloture vote could be 100-0 and the nominee could still be voted down 0-100.
Back to my original point: the filibuster’s sole purpose is to prevent the Senate from fulfilling its constitutional obligation to consent.
As Al said, it would even be a fair compromise to say that failure to consent within a set time constitutes fulfillment of that obligation, but not while the filibuster is being used by a minority as a roadblock.
Dave (110fd5) — 5/28/2005 @ 11:22 pm” The filibusters sole purpose (within the context of judicial nominations) is to prevent the Senate from consenting.”
But so is the committee process, and so is a no vote right? Nothing says that it has to be majoritarian. And IIRC from con law, the senate has a lot of leeway to decide for itself how to carry out its duties. It could advise and consent by 1 senator flipping a coin, as far as the constitution is concerned. It could also advise and consent by requiring unanimity, again, its up to the senate.
It would strenghten your argument somehow by finding out some proof to the fact that a majority is all that is needed. But remember, this makes lots of senate history — committees to blue slips, unconstitutional. Are you so radical as to say we have been doing it wrong all along?
actus (3be069) — 5/29/2005 @ 8:09 amI’ll say it. Every presidential nominee should get a timely resolution, however the Senate chooses to do so. Committee holds, blue slips, filibusters, whether done by Republicans or Democrats, are all against the spirit, if not the actual text, of the constitutional imperative to “advise and consent”. There’s no acceptable justification for the lack of a yes/no decision on the part of the Senate 3-4 months after a nomination. Yes or no, anything else is deriliction of duty by the Senate.
Lyford (3f215e) — 5/29/2005 @ 10:18 amI have to jump in on “the filibusters of judicial nominees are unConstitutional” team. The Constitution is very specific in enumerating those circumstances that require a super majority – treaties, amendments to the Constitution, and over-riding a Presidential veto. No where can I find judicial appointments requiring such in the Constitution, much less “Constitutionally recognized” filibusters.
I’ll add that I’ve ALWAYS found “blue slips” as Constitutionally abhorent. Who started that practice anyway ?
MaDr (d28110) — 5/29/2005 @ 10:48 amIn the meantime, constitutional option or no, Pesident Bush gets Judges appointed and will make more appointments. That’s progress!
lralston (835c92) — 5/29/2005 @ 1:25 pm“Committee holds, blue slips, filibusters, whether done by Republicans or Democrats, are all against the spirit, if not the actual text, of the constitutional imperative to “advise and consent”.”
Why though. You’re assuming that the constitutional imperative is for a majoritarian vote. Its not. It certainly hasn’t been. Why can’t advise and consent mean unanimity, for example?
actus (a5a443) — 5/29/2005 @ 2:24 pmSimple, actus, the Constitution did not say with the advice and unanimous consent of the Senate.
Charles D. Quarles (593219) — 5/29/2005 @ 3:36 pm“Simple, actus, the Constitution did not say with the advice and unanimous consent of the Senate. ”
It didn’t say with a majority either. The senate gets to decide is my point. They could decide to have a committe of 14 make all decisions on advise and consent, for example.
actus (3be069) — 5/29/2005 @ 3:49 pmArticle I, Sec. 7 doesn’t say anything about majority votes, either, only that bills must “pass” each house before being signed into law by the President. Could the House and the Senate each appoint one member to “pass” every bill alone while everyone else contemplates their navel?
Xrlq (30fa84) — 5/29/2005 @ 5:40 pm“Could the House and the Senate each appoint one member to “pass” every bill alone while everyone else contemplates their navel?”
I think so. Don’t budget bills (or maybe it was tax increases) require a supermajority? They just made that up.
actus (3be069) — 5/29/2005 @ 7:35 pmGuys, the name “constitutional option” is a bit of misdirection. It is meant to EVOKE the idea that it restores ‘constitutional’ behavior, and that the filibusters are UNconstitutional, but not to say so explicitly — because not all of the R Senators agree with the argument that the filibusters are UNconstitutional.
What “constitutional option” REALLY means is that the procedure used to change the interpretation of senate rules is itself constitutional — and not ‘nuclear’.
Personally, I *do* agree with the argument that filibusters are UNconstitutional when applied to executive nominations (judicial AND non-) — and I’d agree even if Pres. Hillary had her rubber-stamp D Senate. Elections have consequences — both Presidential ones, AND Senatorial ones. The American people INCREASED the R representation in the Senate last time, AND dumped Chief Filibuster Architect Daschle. That has meaning — meaning that is robbed by applying internal Senate rules in an area where they impact a power that is primarily executive in nature. (See Federalist #76).
Now, while not a huge fan of blue slips and holds, I see a distinction between them and filibusters. While both ostensibly prevent a nominee from receiving a full up-or-down vote on the floor, the former may be overridden by a simple majority vote by the full senate. The latter can ONLY be broken by a supermajority vote, under current rules.
The argument goes, if a nominee blocked by a blueslip or held up by committee REALLY had the support of a majority of senators, then those supporters could present a motion to recall the nominee from committee or squash the hold — and carry the motion by a simply majority vote.
Because they did not do so in the past, it is argued that those nominees did NOT, in fact, have majority support (if you want to interpret “majority support” as “51 Senators willing to pay the political cost of refusing to ‘respect’ the blueslip of an ‘Honorable Colleague’, or unwilling to bow to the ‘authority’ of a duly-appointed Committee Chair”)
Chuck (02c3ab) — 5/30/2005 @ 9:45 amAt last we come to actus’ real position: nothing and everything is unconstitutional – it just depends on whim and situational ethics.
eddie haskell (8fd1a1) — 5/30/2005 @ 10:15 am“At last we come to actus’ real position: nothing and everything is unconstitutional – it just depends on whim and situational ethics.”
Not really. But it is constitutional doctrine that the senate decide its own business.
actus (3be069) — 5/30/2005 @ 10:48 amThe Constitution gives the eligibility requirements for U.S. senators. One of the requirements is that a member must be at least 30 years of age.
Can the Senate by rule require that a senator must be at least 40 or 50? If not (and that is the correct answer), how can the Senate require by rule that advice and consent to a nomination must receive at least 60 votes rather than a simple majority as the Constitution provides?
The Fox (cb86a6) — 5/31/2005 @ 5:30 pm“Can the Senate by rule require that a senator must be at least 40 or 50? If not (and that is the correct answer), how can the Senate require by rule that advice and consent to a nomination must receive at least 60 votes rather than a simple majority as the Constitution provides?”
Art I section 4 says that “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” So they may be able to with two thirds get rid of someone too young.
“how can the Senate require by rule that advice and consent to a nomination must receive at least 60 votes rather than a simple majority as the Constitution provides?”
The constitution does not provide for simple majority. Where does it do that?
actus (3be069) — 5/31/2005 @ 6:30 pm