Occassional reflections of a moderate (hey at least I think I am)

Wednesday, April 13, 2005

In Defense of the Filibuster

In response to a comment at Ann Althouse's site questioning whether the filibuster should be allowed to apply to Presidential nominees, I wrote the following:

John says that "I think there is a radical difference between using this provision to block some proposed legislation--its traditional use--and to block the effort to fill vacant governmental posts on the other."

Two points. First, "its traditional use" is kind of like beauty being in the eye of the beholder. There were Republican filibusters of judicial nominees and other appointees.

Second, as John notes, Senate Rule XXII "does not differentiate the matters on which it may be used". If the rule can be abrogated when a majority is tired of suffering the obstructionist tactics of the minority with regard to nominees, what is to stop the majority from getting rid of the rule whenever the majority tires of the minority obstructing whatever (e.g. drilling in ANWR). Once the rule is taken down for this purpose, the rule exists only at the will of the majority. In other words, the rule does not exist.

(John does raise a very interesting question about the interplay of Rule II and Rule XXII and asks "are we to believe that it will take 60 senators to demand a vote on the credentials?" My answer would be a very qualified "yes". It is quite clear to me that the credentials referred to in Rule II are credentials of being properly elected (or appointed as the case may be) by the respective States. If the reason that some Senators were seeking to extend debate on the credentials of a prospective Senator were because of questions regarding the conduct of the election in the State (or, less likely, the appointment) then I would think that Rule XXII would apply and you would need to have three fifths of the the then duly chosen and sworn Senators to invoke cloture. On the other hand, if there were no questions about the conduct of the election and the Senators were seeking to obstruct a Senator from being sworn in because he was regarded "as too far out of the mainstream" (e.g. "We will not accept the Socialist that the people of Vermont have sent here") then I would think that the Courts would be able to step in to enforce Amendment XVII. That would make one heck of a moot court problem. [As a complete aside, I would note that the number that would be needed to invoke cloture would be south of 60.])

Personally, I agree with George Will's position that the appointments should be made, the filibusters be allowed to take place, then if the argument favors the executive, the executive should run against the obstructionist Senators.

[UPDATE: In the comments over at Prof. Althouse's site, I am reminded that Art. I, Section 5 of the Constitution provides, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,...." Accordingly a court would never step in. I could walk through how I missed this, but "excuses are for losers".]

I wanted to add a few more comments. Current opponents of applying filibusters to Presidential nominees claim 1) Republicans did not filibuster democratic nominees and/or 2) Republicans filibustered a lot fewer nominees. Those who claim (1) are liars (if you can find a more politically correct term for it please let me know). For a brief introduction to filibusters of Presidential nominees see this report (in .pdf) by the Congressional Research Service.

With regard to the argument that Republicans filibustered fewer nominees I say "so what"? The decision is is really, it seems to me, a binary one. You are either for them or against them. If you can't filibuster any then what does it matter whether one was filibustered or a hundred?

Here's a fun report that proves the adage "lies, damn lies and statistics". The study looks at how the current Senators have voted on filibusters of Judicial nominees and completed in 2003. An astonishing 38 of the 40 Senators who have never voted in favor of a filibuster of a Judicial nominee are Republican. Geez these Republicans really do respect the President’s right to have his judicial appointees approved. But wait a second, how many of these 38 have been serving only since 2001 and therefore have only been faced with approving nominees offered by their own party. By my count there are 11 that fall into this category.

But even if you eliminate those 11 that leaves us with at least 27 principled Republicans who have never voted to filibuster a Presidential Judicial nominee. Wait one gosh darned minute, why do we limit the universe to “judicial nominees”? Presumably if the President deserves some leeway in appointing judges who have life tenure then he should also have leeway in appointing individuals to serve in his administration. Personally, I think the President should have more leeway in appointing his administration than in appointing judges but let’s assume that they should be afforded the same degree of deference. Then let us take the most ceremonial and feckless post in a President’s administration and see how much deference should be given to the President’s nominee. Of the 27 principled Republican Senators who would never consider filibustering a President’s Judicial nominee, 14 of them had the opportunity to show their deference to a President’s nominee for a pretty symbolic post in a President’s administration – the Surgeon General. Of these 14, thirteen of them decided it was appropriate to filibuster the President’s nominee. (The lone exception was Ben Nighthorse Campbell.)

The filibuster of Henry Foster is also important with regard to why there were fewer filibusters of Clinton nominees. It showed that Republicans were willing to sustain filibuster’s against his nominees. In the first two and a half years of the Clinton administration, before that confrontation, 12 filibusters were attempted against his nominees. Eleven of these nominees were confirmed (the twelfth being withdrawn by Clinton). In the remaining five and half years of the Clinton administration (after the Henry Foster successful filibuster) there were only five filibusters attempted of Clinton nominees.

So what happened? Well, after they demonstrated that they could sustain a filibuster Clinton only nominated people he thought (probably after conferring with key Republicans such as Hatch) would not be filibustered. Hence, there were fewer opportunities for Republicans to filibuster his nominees, because he didn’t nominate the people who couldn’t survive the filibuster attempt.

George W. Bush has a different view of the prerogatives of the Executive Branch. This is true most obviously in the nomination process but it can be seen elsewhere. He believes in the primacy of the Executive Branch. He thinks “I am the executive, why should I consult with people about who I nominate?” (Note: I do not mean to suggest that he is more arrogant than Clinton, just that, in this instance, Clinton was more pragmatic.) This also explains (more so than political considerations in my eyes) why he was so hot to get Frist in as Majority Leader. I can’t see Lott, Lugar, Warner or Nickles (to name a few) letting the Executive steam roll the Senate like this. If he is able to successfully reshape the dynamic between Senate and the President, this will be his biggest domestic legacy. (Other than massive, continuing structural budget deficits, but who really cares about that.)


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