Paul Gowder Horwitz has a very interesting set of comments at PrawfsBlawg: The Filibuster, the Constitution Outside the Courts, and the Press's Failure. A taste:
What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees. Nor, for reasons I hope I have demonstrated, is it enough to stop there? What constitutional conclusions has he reached on all these other questions? The failure of the press to push for answers on these questions is really disappointing — inexcusable, in fact. It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way.
What accounts for this silence? I don't think it is simply that this level of detail is reserved for law geeks. I think it says something about how we think about the Constitution as applied outside the courts. The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party. Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter.
But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote. At least it is not supposed to be. It decides a constitutional question — and one that, at that, would likely be insulated from judicial review. The Vice President, along with the members of the Senate, takes an oath to “support this Constitution,” and we ought to assume he takes it seriously. That means that, finally, only his views will matter — not those of Senator Frist, or his lawyers, or the public, or even the President. Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences. Is the same any less true of any other government officer faced with the duty of interpreting the Constitution? In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable.
