Strengthening Constitutional Self-Government

No Left Turns

Senate deal on judicial nominations

Details here. Reactions here and here.

Everyone in the Senate is, of course, spinning, but the ability of the Democrats to filibuster judicial nominees hasn’t been definitively broken. They regard themselves as the winners: "We have sent President George Bush, Vice President Dick Cheney and the radical right of the Republican party an undeniable message ... the abuse of power will not be tolerated."

If I were doing the spinning on the Republican side, here’s some of what I’d say. Democratic happiness over this deal gives the lie to the rhetoric of extremism they have used to smear three worthy nominees--Priscilla Owen, William Pryor, and Janice Rogers Brown--and which they will of course use to smear others. Their principal goal all along has been simply obstructionist, not a matter of principle. Since their charges of extremism were in this case so lightly abandoned, no one ought to take them seriously again. Let’s portray the Democrats as they are: not principled defenders of judicial activism (a position we’d love to debate and put in its place), but opportunistic and unprincipled partisans, willing to go to any lengths to stymie a President, for whose person and office their contempt knows no bounds. We have for the moment preserved the forms, but not the substance, of Senate procedure. We will hold the Democrats to their side of the agreement, which we think will take some doing, given their record. And we will continue to remind them of the "flexibility" they displayed today regarding their judgments of judicial extremism. If a judge like Janice Rogers Brown, someone who allegedly would have taken us back to the 19th century, deserves an up-or-down vote, so does any conceivable Supreme Court nominee.

This doesn’t quite make a silk purse out of this sow’s ear, but I might be able to sleep soundly tonight.

Update: This response is troubling:

Nancy Keenan, president of NARAL Pro-Choice America, said her group was "heartened that the crisis has been averted and the right to filibuster preserved for upcoming Supreme Court nominations. We are confident that a Supreme Court nominee who won’t even state a position on Roe v. Wade is the kind of ’extraordinary circumstance’ this deal envisions."

If she’s right, then the appearance of being had will be replaced by the reality of being had. One can only hope, probably in vain, that the Republican signatories of this deal will rejoin their party, should even one of their Democratic counterparts contemplate filibustering a Supreme Court nominee.

I note also in response to Fung (comment # 12 below) that had the filibuster been as "normal" and "traditional" (my words, not his) a response to judicial nominations as he claims, Clarence Thomas would surely have been filibustered. The willingness of his vitriolic and underhanded opponents to accept a narrow defeat, when they appeared to be willing to go to any length to stop his nomination, points to the extraordinariness and unprecedentedness of the current Democratic tactic.

I also note that there are two "advice and consent" clauses in the
Constitution.

He 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....

The treaty-making power is "seamless," with the implication that the Senate’s advice and consent be sought throughout (which is perhaps as it should be since treaties function somewhat as laws). But the President shall nominate and then seek the advice and consent of the Senate in the appointment, which is also as it should be, since nomination is by and large an executive function. Treaty-making is a shared executive and legislative function; appointment is an essentially executive function, qualified by Senate participation. The agreement crafted by the fourteen "moderates" seems to overlook this constitutional distinction.

Discussions - 32 Comments

Joseph,

The link you gave doesn’t show that quote anymore.

I want to know who said it.

The quote was from Harry Reid. It was found in several stories about the Senate deal, although it now appears to have been removed from them.


This is a political Chernobyl for the Republican party. The language about "extraordinary circumstances," or whatever the exact wording is, simply encourages the Democrats to frame the next SCOTUS nominee as "extraordinarily" bad when they filibuster. The Senate GOP has lost momentum, Frist and the White House look helpless (which they very nearly are) on this issue, and the McCain crowd has demonstrated its clout by defeating the party leadership and snubbing the president. The base is very upset and will remain so unless and until the unlikely event of a successful "nuclear option" vote.

The precedent for compromise has now been set. Perhaps there will need to be a new compromise in order to save the Democratic filibuster in the Supreme Court nomination battle. But today’s sellout makes such a compromise more likely.

The stuffed-shirt moderates pride themselves on having saved the Senate. More like, "business as usual." The egotism and lack of concern for the base, let alone the character of the judicial branch, are breatheaking.

A dark day indeed.

"The quote was from Harry Reid. It was found in several stories about the Senate deal, although it now appears to have been removed from them."

Hrmph.

why am I not surprised. He probably "asked the press nicely" to have it removed so he wouldn’t look so petty.

Thanks for the attribute.

I bet George Voinolib had something to do with it.

It is indeed interesting that the Reid quote has been pulled. Don’t want to make the Democrats look too triumphalist, eh?

Well thank goodness the New York Times is going to say nice things about Mike Dewine. I can sleep better tonight.

Yes, a sell-out. I have to wonder if the RINOs threatened not to support the effort to change the Senate rules unless Frist and co. went along with this sellout. Regardless, my cash stays in my pocket, and my time will be better spent on personal projects. I’m deathly tired of GOP cowardice in the face of liberal resolve and their failure to perform on such pivotal issues as the judiciary and immigration. This is how a political party squanders its hard-won gains...complacency and cold feet.

I am very disappointed with the deal. The GOP continues to amaze me with their inability to be forceful. Why didn’t GOP senators talk about the last time Democrats used the filibuster in a serious way (trying to block Civil Rights Act of 1964), were they afraid of offending people in the South?
I am about to conclude the GOP does better when they are a minority because they do not care about losing power, and act according to principle.
I think they are misreading how important judges are to their base. When I stood in line for 2.5 hours to vote, I waited because I cared about security and judges. The GOP probably deserves to lose seats in 2006, unless they perform heroically when it is time to confirm a Supreme Court justice. If they fight for a Scalia or a Thomas then they deserve to rule, if they accept someone like Souter then they deserve to be ruled.

The real Reid quote, IMO, is this one, posted here (The original quote, cited by Dr. K, remains at CNN):


Checks and balances have been protected.


Isn’t it great when our own Senator’s don’t understand the Constitution?

Joe- This is bizarre! Republicans were on the verge of circumventing the rules; not about the vote, but about what it takes to change the rules! Had they stayed that course, then all structure AND content would fly out the window. And you are calling the Democrats extremist, because they were threatening to use an option that has been available AND utilized as well, by Republicans for decades?

The day was saved and the party of Jefferson prevailed. Intelligent people do not want James Dobson and Pastor Haggard running the US Senate. Now they will go back and pump out more hate and ignorance to the "faithful!"

I’m glad you brought up the treaties part of the clause. Does this mean that Republicans will withdraw their support for fast track trade legislation, which arguably circumvents the supermajority requirement for free trade treaties? And how about NAFTA?

The common thread in Republican action concerning Article II, Section 2 is not respect for the constitutional text; it is an interest in advancing the power of the presidency vis-a-vis Congress.

I think the real message underlying the compromise involves senate prerogatives, about which you can read more here.

"Peace in Our Time" should read the headline.

This just puts it off for a few months. The Democrats are going to invoke "extraordinary circumstances" when just about anyone is nominated to the Supreme Court. Hopefully, some the stupid seven R’s will feel sufficiently burned.

On the upside, Ownes, Pryor and Rogers-Brown (I thought they were nasty radicals who have no right to the bench) will be confirmed.

The best move would be to nominate Rogers-Brown and/or Owens to the Supreme Court. They can’t possibly be extraordinary because they are being confirmed under this deal.

ONLY THE GOP COULD SNATCH DEFEAT FROM THE JAWS OF VICTORY! Who else could take a "no-win" situation for DEMACRAPS and had them an unconditional "no-lose" situation.

Truly, a Party which doesn’t deserve majority status!

Bush is not directly involved in this and I think he will do what he wants to do. Look at his Bolton UN Ambassador nomination, Democrats warned him against it and he nominated him anyway. Sure Bolton has been bruised, but he will pass.

While not a scholar of US constitutional law, as an international lawyer I have a certain indirect interest in the interpretation of the treaty power. In the last para. of your post, you point out a very interesting difference in wording between the treaty power and the power of nomination and appointment. If I grasp well your interpretation of the difference, it would mean that the constitution requires that the executive obtain the advice and consent of the Senate prior to or contemporaneous even with the NEGOTIATION phase in treaty-making, is that right (i.e. legislative involvement at every stage)?

Rob

negotation

With respect to the treaty-making power, I would argue that negotiating "in good faith" with another power requires that one negotiate a deal that is likely to be approved by two-thirds of the Senators. Being assured (so far as possible, given the evident unpredictability of Senators) of approval may well require regular consultation with the Senate during the negotiations. This is, at the very least, prudent advice. Could someone challenge as unconstitutional a treaty negotiated without regular consultation with the Senate? I think that would be difficult, since there is no obvious constitutional standard for what amounts to regular consultation. Are a few meetings with the leadership (majority or bipartisan) regular consultation? Does having a liaison staff regularly take the lay of the legislative land satisfy whatever requirement there is? Must Senators be included as part of the negotiating party? The Constitution doesn’t say, and I think that any court ought to be (I almost wrote "would be," but thought the better of it) chary of establishing a constitutional standard for consultation. So if you can’t develop a constitutional standard, then this provision amounts to good political advice: don’t negotiate a treaty that can’t win approval. And especially don’t stick a finger in the eyes of folks whose support you might need. (I’m thinking here of Woodrow Wilson and Henry Cabot Lodge, but my history is quite rusty, so I’m subject to correction.)

The other consideration I would advance on behalf of this reading of the treaty provision is the fact that a treaty has the force of law, which makes securing the approval of a legislative body imperative. Despite the fact that the President may be the most convenient organ for diplomatic contact (what with the requirements for secrecy and expediency, for example), enacting something that has the force of law would seem to require the participation of a legislative body. And of course there were reasons for including the Senate rather than the House because the former was supposed to be the body that was more nationally, as opposed to locally, oriented.

The appointment power was, by contrast, understood to be an essentially executive function, one that could be checked by another body, but that isn’t shared in the same way treaty-making is. The early dispute over the power of removal pretty much canvassed this issue and settled it. An executive ought to have subordinates he or she can trust, which makes it logical to give him or her the initiative. Of course, judges aren’t executive subordinates, so this consideration doesn’t directly apply, but the fact of the matter is that the Constitution doesn’t distinguish between the two types of appointments (executive and judicial). If there’s a difference, then it’s to be found in the gloss that history places on the document. The most obvious glosses are in the habit of generally deferring to Presidents on Supreme Court nominations and in the habit of consulting with home state Senators (especially those of one’s own aprty, if I’m not mistaken) for lower court nominations. So there may well be something to Michael Meckler’s comment (#14 above; see his post here). However problematical this compromise is--Presidents take the lead in setting the judicial tone for the nation, while Senators have some influence in setting the tone for intepretation of the Constitution in their states, which makes little principled sense, since we’re talking about the same document--it has by and large been "satisfactory," on the assumption that judicial nominations were not a political football. I’m willing to lay all sorts of blame on this matter, but that’s not the point of this post. We are clearly no longer governed in practice by our traditions, certainly not that of deference to the President. The only thng currently even vaguely protecting "judicial independence" from politics is the lifetime appointment, and that seems to be what "empowers" judges to legislate, more or less with impunity, from the bench. A politicized judiciary is going to produce a politicized judicial nomination process, with each side using its available political devices to promote its substantive ends. Both sides offer arguments from tradition (and to be sure, I think the Republicans have the better argument, more closely linked to the actual text of the Constitution and the long-standing practices that have grown out of it). It won’t do to pretend that yesterday’s compromise has restored some sense of tradition and decency to the judicial nomination process. At this point, I’m not confident that anything can, short of the kind of political showdown that establishes a new national consensus on the meaning of the Constitution or confirms an old one. I can only hope that President Bush has been keeping his powder dry for just such a showdown and that he has a nominee or two with the stomach for the nasty fight that will ensue.

Your distinctions in the comment make sense, Joseph. But if Republicans (and others) care so much about the text of the constitution - particularly what rule the constitution establishes as a matter of obligation on Senators (supermajority or bare majority) - then why don’t they insist on the 2/3 requirement for trade treaties? Isn’t it a fair requirement of the text?

The reason why this is interesting to me is that it seems to undercut the supposed textual fidelity that lay at the root of the GOP’s argument about the constitutionality of the judicial nominations filibuster. If the Senate can abdicate its textually plain responsibility to approve treaties with a supermajority requirement, why can’t it also add a supermajority requirement that is not present in the text?

Unless I’m missing something here, the answer is: GOP presidentialism.

Fung has made an excellent point, and it looks like it’s going to be completely ignored. Guess it would be too painful to acknowledge...

Perhaps it was ignored because it was factually erroneous--particularly as to the use of filibusters by Republicans against judicial nominees for decades. Lest you claim that the failure of the MAJORITY to clear a nominee from committee is the equivalent, I should remind you that such a nominee could get to the floor with a discharge petition, which only requires 51 votes. Accordingly, stalling a candidate in committee does not deny the majority of the Senate the opportunity to approve a candidate if they so choose, whereas the use of the filibuster does prevent a majority of Senators from exercising their constitutional consent. As for why it matters as to whether the party is in the majority, the constitutional check of advice and consent lauded by the Democrats on the floor in their many homages to checks-and-balances is not one which is provided to the minority over the majority, but to the legislative vis-a-vis the Executive branch. The constitution does not require a supermajority vote to make the check "extra-special" if the party of the President happens to control the Senate. Indeed, the Democrats argument that there needs to be a more fervent check when the same party controls both the Presidency and the Senate falls peculiarly flat in this case, because the issue of judicial nominations has been a campaign theme for at least the last two (if not last three) congressional elections, and it has been one which polling suggests has explicitly contributed to Democratic losses. Put plainly, it is not merely that Americans are choosing the Republican party more than the Democratic party, it is that they are choosing the Republican party more because they trust Republicans more on the issue of judges.


All this is somewhat beside the point. The constitution permits each house to make its own rules. The ill-named "nuclear option" (thank you, Trent Lott) is nothing more than a new Senate rule. Why conservatives have not focused on this simple element in Article I is mind-boggling.

The real issue here is what sorts of judges will be on the bench. Curbing, then ending, judicial tyranny is far more important than maintaining a badly abused Senate tradition, which previously had not been applied to judicial nominees on a partisan basis.
The end justifies the means, and the means are not especially radical in any case.

All this can be communicated very simply, yet somehow our side has failed to do a good job of it.

We need to now.

Comment 12 by Fung,/b>

Joe- This is bizarre! Republicans were on the verge of circumventing the rules; not about the vote, but about what it takes to change the rules! Had they stayed that course, then all structure AND content would fly out the window. And you are calling the Democrats extremist, because they were threatening to use an option that has been available AND utilized as well, by Republicans for decades?

Circumventing the rules? How did the "rules" get there in the first place? Did it take 2/3 of a majority in the senate to establish what the Constitution prescribed (that each house of congress would set it’s own rules)? I say, "Not!"

Democrats started this fight by setting a new standard by which presidential nominees must pass muster in the senate. It was they who dropped the nuclear bomb, damn it! It was Democrats who broke a 214 year precedent wrt to judical nominees. It is they who are the "radical extremists" in this fight.

And it’s damn well time Republicans get over this fear of the MSM who carry this bucket full of liberal b.s. crap around the daggone beltway. Frist can change these rules with a simple majority, and the GOP has every single Constitutional and moral right to damn well do so!

Comment 12 by Fung,

Joe- This is bizarre! Republicans were on the verge of circumventing the rules; not about the vote, but about what it takes to change the rules! Had they stayed that course, then all structure AND content would fly out the window. And you are calling the Democrats extremist, because they were threatening to use an option that has been available AND utilized as well, by Republicans for decades?

Circumventing the rules? How did the "rules" get there in the first place? Did it take 2/3 of a majority in the senate to establish what the Constitution prescribed (that each house of congress would set it’s own rules)? I say, "Not!"

Democrats started this fight by setting a new standard by which presidential nominees must pass muster in the senate. It was they who dropped the nuclear bomb, damn it! It was Democrats who broke a 214 year precedent wrt to judical nominees. It is they who are the "radical extremists" in this fight.

And it’s damn well time Republicans get over this fear of the MSM who carry this bucket full of liberal b.s. crap around the daggone beltway. Frist can change these rules with a simple majority, and the GOP has every single Constitutional and moral right to damn well do so!

#12 - please refer to the instance in which only Senators who were members of the Republican Party filibustered a judicial nominee.

"Each House may determine the Rules of its Proceedings" There is nothing hallowed about the filibuster. It is a mere "rule of proceedings". If the constitution says anything about the filibuster it is that it can be changed, modified, or eliminated as the senate sees fit. Indeed the filibuster has been tweaked numerous times in our history. The filibuster, at different times in history: 1)could be ended by one senator 2)could not be ended even by 99 senators 3)could be ended by 67 senators 4)could be ended by 60 senators. In 1979, the nature of the filibuster was changed completely. The traditional filibuster required senators to hold the floor by speaking 24 hours a day, seven days a week, while all other senate business stopped, until they tired or until their opponents were persuaded. The modern filibuster is a joke that involves no speaking at all and that has no effect on the other business of the senate. There is absolutely no reason - no precedent, no constitutional text, nothing - why any senator should hesitate to change this senate rule. If senators want to filibuster, make them stand up like men and hold the floor until they drop and let them feel pressure from the people for bringing the business of the senate to a halt. (Bringing the business of the senate to a halt is not such a bad idea. I don’t think the senate has done anything worthwhile in my lifetime.) And any senator who utters the phrase "unlimited debate" is a liar and a charlatan and knows it.

On the treaty power, again, I think Joseph Knippenberg’s clarification is helpful. If the constitution does require senate involvement throughout the treaty making process, then--while I agree that the constitution doesn’t specify the specific form or nature of that involvement--the court would still have to decide whether, whatever form it takes, involvement at the negotiation or pre-negotiation stage meets the minimum constitutional requirement. So there would be at least a minimum level of constitutional scrutiny. Otherwise, there is the risk of the court in effect deciding that aspects of the constitution are not susceptible to adjudication, whereas others are. That is a dangerous route to take, no?

best,

Rob

Mr. Howse: There are numerous provisions which are not susceptible to adjudication, and most of them deal with just these sort of political questions. Thus the name of this particular rule of constitutional avoidance: the political question doctrine.


Thank you, Mr. Peebles. This is all that really needs to be said about the hallowed filibuster.

Okay, as far I I understand this, there are two levels (at least) from which to approach this discussion. First, I defer to Charles Peebles (indeed, to most of you) regarding the legality of the filibuster, and of changing the rules.

The level that I am responding to is the apparent horror on the part of Republicans at the threat by Dems to use the filibuster, as though it was (a) not "fair," and (b) unprecedented.

According to my scanning of the blogs and the news, Republicans blocked an LBJ nominee, Abe Fortes, in 1968 with a filibuster. More recently, Frist himself participated in a filibuster, or the threat of one, in 2000, in order to block one of the more than 60 Clinton nominees who were successfully blocked. Compare that number, by the way, with the number (and proportion) of GWB nominees who have been blocked.

So, I really don’t know about the legality of this issue, though the outrage on the part of many Republicans seems a bit precious.

Add to this the "slippery slope" warnings that I have read above. Given this one compromise, it strikes me that many writers in this blog are overreacting! What else have Dems on the Hill to be happy about, these days? I think you guys are still way, way ahead.

No one was filibustered in 2000.

The Abe Fortas myth has already been discussed on this site. He was not filibustered. The Senate leader tried to invoke cloture to prevent legitimate, ongoing debate, only 4 days after his nomination reached the Senate floor. A large bipartisan group voted to allow debate to continue. His nomination was almost immediately withdrawn because Johnson knew he would not receive enough votes to be confirmed. That has no similarity to what has happened to Owen, Brown, Estrada, or any of the 6th Circuit nominees. In fact, it is quite the opposite. For Fortas, the leadership tried to stifle debate and force an early vote. For Myers, who is supported by 59 Senators, this new deal means that he will not be given a vote and his qualifications will not be debated.

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