Hypocrites Ball

Just combine these two links please:

1) TPM explains the procedural (and moral) aspects of the so-called 'nuclear option' — in which a parliamentary device would be used to end-run a Senate rule that entrenches [requires a super-majority to change] the filibuster. Using the spurious claim that the filibuster is unconstitutional, Sen. Frist would try to overturn the rule by majority vote.

2) Senator Frist gets caught out by Sen. Schumer on the floor of the Senate:

SEN. SCHUMER: Isn't it correct that on March 8, 2000, my colleague [Sen. Frist] voted to uphold the filibuster of Judge Richard Paez?

Senator Frist's eloquent reply must be read in its entirety.

As for the underlying issues, as I've said before, I don't in principle much like the filibuster. It's anti-majoritarian, albeit in a way that might sometimes counterbalance the built-in tilt of the Senate towards large open spaces. Yes, there can be a value to mechanisms that respect the intensity of feelings of a minority; even so, the filibuster has an ugly pedigree.

I also don't have warm fuzzy feelings for entrenchment of rules regarding unequal democratic representation or apportionment (I'm ok with entrenching individual rights) — like for example the rule that entrenches two senators per state regardless of population disparity. Nevertheless — while I claim no expertise on this question — my gut reaction is that I don't think that entrenching a Senate rule is unconstitutional either.

One thing I am sure about: neither the advise and consent clause nor any other part of the constitution 'requires that a nominee be given an up or down vote'. Whether or not the filibuster is morally valid, or even beneficial in the long run, for my money it is undoubtedly constitutionally valid.

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3 Responses to Hypocrites Ball

  1. Byron says:

    Based on a story in the Washington Post on Wednesday, it appears that a lot of Republicans are changing the reasoning behind the rule change. The people quoted in the story were not saying that it’s unconstitutional, but rather they were just going to set a precedent that you can’t filibuster judicial nominees. So make a precedent instead of a rule change. Which they say only requires 51 votes. Also, in another funny change of reasoning: the “Constitutional Option” is no longer named that because judicial filibusters are unconsitutional, but rather just the Senate using its constitutional powers to set its own rules and procedure.

    Of course, I have no idea how widespread this change is or even if most of the republicans have gotten the memo, but it’s interesting to see how they’re still trying different ideas using the same terms.

  2. Ugh says:

    I don’t think that entrenching a Senate rule is unconstitutional either.

    Vik Amar has good commentary on this, basically stating that letting past senates bind future senates is unconstitutional (as would be done with the rule change rule):

    http://writ.news.findlaw.com/amar/20030627.html

  3. michael says:

    I think the argument that past Senates cannot bind a current one has some real force. But I’m certain that this Senate can bind itself. Did it re-adopt the standing rules at the start of the term? Explicitly? The 2000 date on this text suggests that it didn’t. How about by conduct and implication?

    The underlying issue isn’t completely clear cut: The Senate clearly believes that one Senate can bind the next, and they have proceeded on that assumption for a long time. That constitutional common law is entitled to some weight. More weighty is the fact that unlike the House, the Senate has continuity: every Senate has 2/3 of the same members as the previous one. So unlike the House there’s a sense in which it is less one Senate binding the next than that of a continuing, slowly changing body. I understand that the legal authorities tend against the idea of a continuing Senate and in favor of the seriatim view, and I’m not saying they are wrong, just that it’s not a one-sided debate.

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