Thursday, May 05, 2005

Senate Rule XXII is Unconstitutional

Update: the filibuster conversation continues here.

Lately, Washington's been focused on the filibuster. Senate Republicans talk of voiding the rule; in response, Democrats threaten to halt or slow other Senate business.

Reasonable people can disagree about whether the filibuster is good policy. But there's no principled basis to the Dems' argument -- or to the particularly shallow analysis in comments on another post -- that the filibuster is Constitutionally required. Indeed, Senate Republicans are plainly correct--the filibuster is affirmatively unconstitutional:
  1. The Constitution neither authorizes nor requires the filibuster:

    • Article I: Article I Section 1 of the Constitution establishes the Senate; the process of approving legislation is set forth in Section 7, which reads in part:
      Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it.
      The key word here is "pass" and its meaning.

      Several Article I provisions mandate supermajority voting in particular instances. For example, Article I Section 3 specifically requires a 2/3rd supra-majority for impeachment. Article I Section 5 mandates the same 2/3rd vote to expel members. And Article I Section 7 requires a 2/3rd vote of both houses to override a Presidential veto. But none of these Article I provisions require, or even address, the filibuster of Judicial nominations.


    • Article II: The Constitution also mentions the Senate in Article II Section 2 clause 2, in the context of Presidential power:
      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, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
      As Stephen Calibrese, professor at Northwestern University Law School, noted in the May 14, 2003, WSJ, "Exceptions to the constitutional principle of majority rule exist, but they are enumerated in seven express situations where a two-thirds vote is required." None of the seven exceptions authorize or address filibustering judges.


    • The Framers intentionally rejected the filibuster: Contrary to Senator Chuck Hagel's contention, the Framers deliberately rejected expanding "minority rights." As Constitutional co-author Alexander Hamilton explained in the Federalist Papers (number 22), "the fundamental maxim of republican government . . . requires that the sense of the majority should prevail." James Madison concurred in Federalist 58:
      It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.

      In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.
    • In sum, the filibuster isn't in, nor was it intended to be part of, the Constitution. As Philip Terzian says, it's "a Senate rule, not a constitutional requirement." And it's a recent one--the current Senate rule was adopted during the Wilson Administration, not by Hamilton or Madison.

  2. Senate Rule XXII is subordinate to the Constitution: The filibuster derives from Senate Rule XXII(2), which establishes the necessity of 60 votes to close off debate. Article 1 Section 5 authorizes both Senate and House to establish rules. However, a rule can neither augment Congressional authority nor trump the Constitution, as the Supreme Court confirmed in U. S. v. Ballin, 144 U.S. 1, 5 (1892):
    The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, every rule must be within the scope of the body's Constitutional authority and not inconsistent with any Constitution provision.
    As an example, a rule giving Senators a binding vote before withdrawing from a treaty would be unconstitutional because the Constitution limits the body's scope to "advice and consent" upon the adoption of treaties, without mentioning revocation.


  3. The filibuster rule contradicts the Constitution: In the absence of any Constitutional provision authorizing the filibuster, the question is whether the Constitution forbids it. It does. Returning to Article II Section 2 clause 2:
    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, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
    The first clause (up to the semicolon) requires a supermajority of the Senate ratify treaties. But no such super-majority is specified in the very next "appointment" clause. A semicolon is equivalent to a period; the remainder of the text is a different sentence expressing a different thought, as shown by repeating the subject "he."

    Traditional rules of legal interpretation include "expressio unius est exclusio alterius," the mention of one thing excludes others; in other words, the presumption that omissions are intended. 2A Sutherland, Stat. Const. §§47:23-47:25 (6th ed.). Here, the Framers intentionally distinguished between majority and super-majority voting. Moreover, as evidenced in the Federalist Papers, they considered, and rejected, the alternative. The fact that the Constitution mandates supra-majority voting in some instances demonstrates the Framers intended to exclude it elsewhere.

    The vast majority of judges and scholars agree. According to Vikram David Amar, professor of law at Hastings College of the Law and a former Supreme Court clerk,
    [O]rdinary majority rule is the Constitution's baseline, and the Constitution is careful and explicit in detailing the situations in which supermajorities are required. Thus, the Constitution's drafters plainly knew how to impose a supermajority rule when they wanted to. They didn't, however, impose the supermajority requirement for ending debate in the Senate.

    Therein lies the primary argument against the constitutionality of the filibuster: In failing to expressly include the Senate cloture rule, the Constitution implicitly excludes it. (The Latin term for this interpretive rule is expressio unius est exclusio alterius.) The Constitution, on this reading, gives an exhaustive, exclusive list of all supermajority rules that can be applied in the House or Senate.
    Former White House Counsel Douglas Kmiec agrees:
    The Framers, after all, knew how to provide for supermajorities when they wanted them. . . . In all, there are seven situations in which the Constitution explicitly requires more than a majority, but arguably not otherwise.
    Writing in the Harvard Journal of Law & Public Policy, Martin Golds and Dimple Gupta quote Democratic Senator Hubert Humphrey in 1953:
    The Constitution, he observed, listed only a few instances when more than a majority was needed to act; all other actions, including choosing Senate rules, were to be decided by majority vote.
    Further confirmation comes from Thomas Jefferson's Manual of Parliamentary Procedure written when he was Vice President and therefore President of the Senate. Section 41 of Jefferson’s Manual states: "The voice of the majority decides. For the lex majoris partis is the law of all councils, elections, etc., where not otherwise expressly provided."


  4. The Supreme Court already addressed the issue--and upheld a simple majority: In Ballin, 144 U.S. at 6, the Court reaffirmed the application of expressio unius to majority voting:
    [T]he general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations. As, for instance, in those states where the constitution provides that a majority of all the members elected to either house shall be necessary for the passage of any bill. No such limitation is found in the federal constitution, and therefore the general law of such bodies obtains.
    The Ballin court, 144 U.S. at 7, quoted 1 Dill. Mun. Corp. (4th Ed.) 283, saying "in the absence of special provisions otherwise, a minority of the select body, or of the committee or agents, are powerless to bind the majority or do any valid act."


  5. The House repealed its filibuster over 100 years ago without challenge: Prior to 1889, House rules included a similar filibuster. And Speaker of the House Thomas Reed successfully called a vote and repealed it--with a simple majority. If the House can drop the filibuster, so can the Senate.
Conclusion: The Constitution doesn't authorize a filibuster. In fact, the Framers mandated super-majority voting in some circumstances, but rejected it elsewhere. So the filibuster is unconstitutional, and no mere Senate rule can save it.

More:

Gindy says Senator Joseph Lieberman (D-Ct) agrees.

Update:

Follow-on thoughts and reply here.

16 comments:

BAH said...

One of the better posts I've come across in quite awhile, Carl: well-thought and well-written. I've linked to it at my own site and, as I hope you're aware, your're blog is in my blogroll under "Quid Pro Quo." Yours is an exceptional blog! -Bernard-

BAH said...

"Your blog," not "you're blog" (sic), Carl! -Bernard-

@nooil4pacifists said...

BAH: Thanks. And would be happy to dispense linky-love--if I knew which blog you host.

loboinok said...

Awesome post! Thanks for the education.

Dingo said...

"Suggestion--research first, write later. "

Carl... I am hurt.

Actually, I know the constitution pretty well. I know the Federalists papers pretty well (even own a copy). The Rules of Proceedings Clause gives the Senate the power to determine the method of consent. Art 1, Sec 5. All you post is doing is talking around the issue of a majority vote. If a nomination comes to the floor for a vote, it is a majority vote. No one disputes that. You are tackling the wrong issue. What you are neglecting to address is if the Senate is allowed to make their own rules.

Now did you do your research? US v Ballin actually supports my claim, not yours in the assertion that a legislative house has the right to create their own rules.

"The constitution, in the same section, provides that 'each house may determine the rules of its proceedings.' It appears that in pursuance of this authority the house had, prior to that day, passed this as one of its rules: [144 U.S. 1, 5] 'Rule 15. ... (3) On the demand of any member, or at the suggestion of the speaker, the names of members sufficient to make a quorum in the hall of the house who do not vote shall be noted by the clerk and recorded in the journal, and reported to the speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business.' H. J. 230, Feb. 14, 1890."... The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. ...It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal... Any one of these methods, it must be conceded, is reasonably certain of ascertaining the fact; and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation of fundamental rights in any, it follows that the house may adopt either or all, or it may provide for a combination of any two of the methods. U S v. BALLIN, 144 U.S. 1 (1892) at

By legal definition, as long as the rules are not arbitrary or capricious, the rules promulgated by the house are absolute and beyond challenge. Since the Constitution sets for the right of advice and consent to the Senate, it is to the Senates discretion as to how to advise and consent. since there is no constitutional method of consent prescribed nor inhibitions, the Senate has sole authority to make these determinations. It is like the 9th and 10th amendments. What is not enumerated are left to the people. What is not enumerated in the constitution regarding rules of procedure is left to the Senate.

"the fundamental maxim of republican government . . . requires that the sense of the majority should prevail."

You do realize that Hamilton was talking about the Articles of Confederation, right?

"James Madison concurred in Federalist 58:"

You do realize he was talking about the apportionment of representation in the House of Representatives, right?

But Madison did write in regards to the need for a Senate "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." If you read the entire Federalist papers, you would see Madison also did not think that there would be a two party. In fact,
he believed that the only way to "prevent the tyranny of the majority by making it impossible for coalitions to develop stable majorities." Federalists 62. In Madison's mind, the 'majority' would have to be a coalition of many different factions that would require compromise. No single group would have an outright 51 votes. In Federalists 62, Madison also said, "
The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.Federalists 62

"They didn't, however, impose the supermajority requirement for ending debate in the Senate."

Nor did they include any requirement for beginning debate, how long to debate, who gets to talk when and otherwise organize debate. There is nothing in the constitution about 'holds' or 'committees' either. Are these unconstitutional? That argument just makes no sense. If everything not included in the constitution is excluded, the senate couldn't run. That's why they have the Proceedings clause.

The filibuster is neither unconstitutional, nor mandated. It is just a rule. Yes, it can be changed, but I would argue against it.

I will close with a member of you own party (Howard Baker, TN 1968)

"And, so, Mr. President, I am also not overly taken with charges which are made from time to time in the press and elsewhere, and from time to time on the floor of this body, that dilatory tactics, sometimes characterized as filibuster, otherwise extended debate, frequently as obstructionism, but which are clearly within the framework and scope of the rules of procedure in the Senate, and particularly rule XXII, are permitting a willful minority, as one distinguished... to obstruct the will of the majority... It occurs to me further that is is basic and fundamental to the governing process in a democracy and consonant with the traditions of this nation, that at any given moment the majority is not always right all the time. And it is clear and predictable that the people of America, in their compassionate wisdom, require the protection of the rights of the minority as well as the implantation of the will of the majority."

ScurvyOaks said...

Dingo, you say: "it it to the Senate's discretion as to how to advise and consent." So would it be constitutional for the Senate to adopt a rule that requires an 90% majority to concur with a treaty? You may have to say "yes," since this is the absurd result your argument leads to. But the answer is clearly no, because that would be the Senate using rules of its own making to tamper with the balance of power between the executive and the legislative branches that the Constitution lays out. (For legislation, I think the filibuster passes constitutional muster because of Art I, Sec. 5, Cl. 2.) Your post ignores -- because it must -- the point that the Framers knew how to write a supermajority provision where they wanted one.

@nooil4pacifists said...

Dingo:

Truth sometimes hurts. And the truth is that your comments either blithely ignore, or misread, the logic and links in the original post. So here's some actual truth addressing all but one of your assertions (spelling and grammar from original):

Claim 1: "What you are neglecting to address is if the Senate is allowed to make their own rules."

Quote from my Post: "Article 1 Section 5 authorizes both Senate and
House to establish rules."

Analysis: Res Ipsa Loquitur.

Claim 2: "By legal definition, as long as the rules are not arbitrary or capricious, the rules promulgated by the house are absolute and beyond challenge . . . [T]he Constitution sets for the right of advice and consent to the Senate, it is to the Senates discretion as to how to advise and consent. since there is no constitutional method of consent prescribed nor
inhibitions, the Senate has sole authority to make these determinations."

Quote from my Post: "The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and [. . . ] every rule must be within the scope of the body's Constitutional authority and not inconsistent with any Constitution provision."

Analysis: You neither explain nor support the "legal definition" on which you purport to rely. What's your source? Why does it apply here? If you meant the legal standard, the sole relevant authorities are the Constitution and the US Code, neither of which mention any Senate filibuster of judicial nominees. Though you quoted Ballin accurately, you completely ignored consequences of this "legal definition." ScurvyOaks properly observes that your argument produces absurd results, suggesting your view isn't well thought-out.

Claim 3: "You do realize that Hamilton was talking about the Articles of Confederation, right?"

Quote from my Post: "As Constitutional co-author Alexander Hamilton explained in the Federalist Papers (number 22), 'the fundamental maxim of
republican government . . . requires that the sense of the majority should prevail.'"

Analysis: You completely misread this passage. Hamilton was talking about the Articles of Confederation--in order to point to a flaw in that document corrected in the Constitution.

Claim 4: "You do realize he was talking about the apportionment of representation in the House of Representatives, right?"

Quote from my Post: "James Madison concurred in Federalist 58: [T]he fundamental principle of free government would be reversed [by at least some supra-majority requirements]. It would be no longer the majority that would rule: the power would be transferred to the minority."

Analysis: Yes. The Madison quote is from a discourse about apportionment in the House. Yet Madison's defense rested on what he called (emphasis mine) "the fundamental principle of free government." Where the co-author of the Constitution appeals to the fundamental first principle, we can be sure the principle applies more generally, including beyond the narrow issue addressed in Federalist 58. In any event, the quote is a useful argument by analogy and relying on Madison's "fundamental principle" makes the analogy anything but weak.

Claim 5: "[Madison] believed that the only way to "prevent the tyranny of the majority by making it impossible for coalitions to develop stable majorities."

Quote from my Post: "The Framers, after all, knew how to provide for supermajorities when they wanted them. . . . In all, there are seven situations in which the Constitution explicitly requires more than a majority, but arguably not otherwise."

Analysis: This point actually undermines your view--it establishes that the Constitution did not employ supra-majority voting as a check against tyranny of the minority; indeed, your quote shows that Madison addressed the concern outside of, and in a manner wholly different from, the filibuster.

Note: I will respond to your reliance on some (unspecified) unwritten or inherent authority legitimizing the filibuster in a future post.

Dingo said...

"Claim 1: "What you are neglecting to address is if the Senate is allowed to make their own rules."
Quote from my Post: "Article 1 Section 5 authorizes both Senate and
House to establish rules."
Analysis: Res Ipsa Loquitur."

Rebuttal: just because you quote the rule does not mean you have addressed the rule. You have been addressing, in essence, floor votes in as the fact that you are talking about majority rule. What you still not have addresses is the procedural validity of withholding a nomination from a floor vote as part of the consent process. I think we can both agree that "consent" also means the right to refuse (obviously). Where in the Constitution does it say by what procedure the Senate MUST consent. Why is not refusal to vote as equally legitimate way to withhold consent. And, why are you not outraged by committee holds then (I will discuss this later)

"Analysis: You neither explain nor support the "legal definition" on which you purport to rely. What's your source? Why does it apply here? If you meant the legal standard, the sole relevant authorities are the Constitution and the US Code, neither of which mention any Senate filibuster of judicial nominees."

Rebuttal: A) I do stand corrected. I should have said standard not definition. My apologies on that. B) As for the substance though, I stand behind it. You have still not supported a claim that a filibuster, hold, or quite and slow committee death is ignoring constitutional restraints or violating fundamental rights. You keep talking about majorities, but are still ignoring Senate procedure as the core issue.

So, what is your beef with the rule? Is not having an up or down vote ignoring constitutional constraints? Is it that you believe "consent" means there must be an up or down floor vote so all Senators can vote yes or no? If that is the case, the Republicans were acting unconstitutionally for 6 years of Clinton's presidency. If the Filibuster is an unconstitutional procedural matter, so is putting a hold on a nomination as happened to almost half of Clinton's nominees. And that was not done by just a minority, but a 'super-minorty' in the judicial committee (10 Senators). 55 of Clinton's nominees never even got a hearing. 10 never got votes. That means 10 Republicans blocked 90 other Senators from voting. If you truly believe that the place for a Senator to express his/her displeasure with a nominee is at a floor vote, then you have to agree that the Republicans were using unconstitutional procedures to block a floor vote, also. That means, no more committees, no more holds, no more returns. Every person nominated by the president must have an up or down vote to determine whether or not the majority of Senators supports the nominee. The Republicans use procedural rules to frustrate the nomination process. So, if the Democrats are being unconstitutional, so were the Republicans.

So, until you can show me how filibusters are is ignoring constitutional restraints or violating fundamental rights, and other procedures used to block the entire body on voting on the floor are completely legitimate, your argument doesn't hold much weight... Or, maybe you do believe that any Senate procedure to frustrate, delay or stop a floor vote is unconstitutional and would support doing away with holds and committee delay tactics, etc. Either way, it can only be one way or another.

"Analysis: Yes. The Madison quote is from a discourse about apportionment in the House. Yet Madison's defense rested on what he called (emphasis mine) "the fundamental principle of free government." Where the co-author of the Constitution appeals to the fundamental first principle, we can be sure the principle applies more generally, including beyond the narrow issue addressed in Federalist 58. In any event, the quote is a useful argument by analogy and relying on Madison's "fundamental principle" makes the analogy anything but weak. "

Rebuttal: I think it is comparing apples and oranges since it was about the need for reapportionment of the House due to population shifts, but either way, I think we can both agree that if we were to count up the number of times that Madison talked about the fear of "tyranny of the minority over the majority " and "tyranny of the majority over the minority" the latter would win hands down. Madison was much more concerned about the abuses of majority rule.

"Analysis: This point actually undermines your view--it establishes that the Constitution did not employ supra-majority voting as a check against tyranny of the minority; indeed, your quote shows that Madison addressed the concern outside of, and in a manner wholly different from, the filibuster."

Rebuttal: I'm sorry, but I am really not getting what you are trying to say here. Can you rephrase maybe? How does this reflect on Madison's belief that there should be no single party that would have 51+% of the vote to begin with.

"Note: I will respond to your reliance on some (unspecified) unwritten or inherent authority legitimizing the filibuster in a future post."

Report for Congress: Evolution of the Senate's Role in the Nomination and Confirmation Process: A Brief History, June 5, 2003, Betsy Palmer - Analyst in American National Government: Government and Finance Division. Library of Congress order number RL31948. Not sure if it is on-line or not.

JoshSN said...

Avoiding the long-winded debate.

The truth is that bringing up the Wilson administration era origins of Rule XXII is deceitful. The filibuster has a 220+ year history, and all the founders knew about it and did not complain.

The facts:

Rule XXII was designed to reign in the long-standing tradition of unlimited debate in the Senate.

To establish this, try www.Senate.gov.

Here is something from the George Mason University sponsored History News Network which is quite readable.

The result:

The author of this blog is patently wrong when he says "And it's a recent one--the current Senate rule was adopted during the Wilson Administration, not by Hamilton or Madison."

Madison did not serve in the first Senate, but even at that time the principle of unlimited debate was recognized. Forever. Since the 1st Congress. It was only to reign this process in that the Wilson-era Senate adopted Rule XXII.

If the author of this blog knew this, and well they should, then they were not only wrong, they were being deceitful.

JoshSN said...

Another serious flaw in the author's argument.

He claims "The vast majority of judges and scholars agree [that supra-majorities are only appropriate where the Congress explicitly allows them]."

Yet, to establish that fact he links us to Senator John Cornyn's website. The article there isn't talking about filibusters, but strictly "filibusters of judicial nominations." In addition, only three views are represented.

Nowhere is there evidence presented by the author that "The vast majority of judges and scholars agree" that the 220+ year tradition of unlimited debate in the Senate, as reigned in by Senate Rule XXII, is unconstitutional.

Whether or not this is the case is of interest, but it has nothing to do with the link.

As an aside, the one leftist quoted at the Cornyn site is also misused, since he was talking about a two/thirds requirement for part of his quotes, an issue which is not before us now.

There is also no discussion that, for the last 80 or so years, two negative comments from the two home state Senators (two negative "blue slips") often stopped nominations from even getting hearings.

ScurvyOaks said...

Josh, you're in error when you say that the principle of unlimited debate was recognized even at the time of the first Senate and "forever" until the Wilson-era Senate. Go read Gold and Gupta's article in the Harv. J. of Law and Public Policy. (You can link to a .pdf of it at the Federalist Society website.) Briefly, the original Senate rules allowed a Senator to make a motion "for the previous question," which would be passed by a simple majority. Such a motion to put the question functioned as a method for cloture. Even after this motion was deleted from the Senate's rules in 1808, there were no filibusters until the 1830s.

JoshSN said...

I should thank you for the correction, as the existence of unlimited debate comes from that age when lawlessness ruled America, and no one who remembered the war was still around, 1806, and was first practiced extensively by those godless men of the 1830s.

Gold and Gupta, however suggest Robert's Rules of Order be in effect, ignorantly, it seems. This author also notes that Gold has worked extensively for Frist.

So, perhaps the rule only goes back to 1806. Or maybe only the 1830s. Gold and Gupta, however, are not the end of the story.

John Dean wrote an article on the topic of ending the filibuster in general, too.

PFAW notes that President John Adams had many of his nominees simply "postponed indefinitely" and they never recieved an up or down vote.

He notes the Congressional Research Service has found 35 filibusters in the latter half of the 20th century of Presidential nominees, 17 of them Judges.

If you want a fair apprisal of what's really going on, Senator Specter gives a decent reading of the history in many of his remarks on the topic. He discusses his experience in the Senate. This is nothing new, and he lays blame at the feet of both sides. Quite evenly? I'm not sure.

I recommend the Dean article.

In any event, Carl was being deceptive by pointing to Rule XXII as somehow being the origin of the filibuster, when in fact it was designed to stop that practice. He is deceptive, or simply wrong, when he says it dates from that time.

I'm not sure Gold and Gupta are the final word on the matter. It would take someone expert in three things, the rules of the early Senate, the records thereof, and the private records of the early Senators.

I have an interest in only the latter two, and never has my interest generally run to the questions of the rules.

Thanks for the correction.

@nooil4pacifists said...

This thread is quite good, and I promise a rebuttal as soon as possible.

Anonymous said...

Let's talk a little common sense. The truth is that reasonable arguments can be made on both sides.

While you might say that a 60% majority throws the power to the minority, this isn't really the case. If the minority is greater than 40%, one would hope there's a good reason for blockig the majority. Clearly the Democrats think the lifetime appointment of judges sufficiently critical to object and use their 40% to overcome the will of the majority.

It's not 90% majority. It's only one "notch" greater than 50%

Clearly, if the minority uses the super-majority to block federal judges, they must do it sparingly or they will do as much damage to the Senate as the Republicans would do by eliminating it.

What's odd is that judges are the only lifetime appointment in our government and a super-majority for judges is not a constitutional requirement. (Is there any other action performed by the Senate that is irreversible?)

The more important or the more contentious an issue, the more important it is to achieve a super-majority to reduce divisiveness and carping after the fact.

President Bush could have nominated people a little more to the center and gotten close to unanimous consent. But, chose to nominate some folks who pretty well tip the right side of the scaltes. (I'm not criticizing the fact that they are fairly far to the right, only making the observation.)

In fact, President Bush nominated a judge that the Dallas County Texas Democratic Party Chair endorsed.

The President has put the Senate into this tailspin by nominating a small number of Judges guaranteed to get a rise out of the Democrats.

The Republicans blocked a significantly higher percentage of nominees than the Democrats are doing now. But, bickering about who's the most aggregious offender don't really get to the heart of the matter. The Democrats are using the filibuster since the Repulicans took away the blue-slip system when they took control of the Senate.

Here's the real question: What is George Bush up to? Why would he nominate these particular nominees, knowing that he was guaranteed to start a bitter battle? Is he simply trying to stir the pot on the basis that he can use the anomisity to peal off Senators for a future vote on a pet project? Is he playing he to Evanglical Christian base? Is he trying to establish a legacy by having his mark long survive his exit in 2008?

I don't know. But, I'd be happy to hear anyone's ideas about what Bush is really up to.

Geoff

P. S. If anyone cares, some of the judges now being blocked are people that were identified as likely Bush nominees and as probable blocks by the Democrats prior to the 2000 election.
GS

@nooil4pacifists said...

Reply and new arguments posted here.

John Noble said...

Your analysis turns on this proposition:

Traditional rules of legal interpretation include "expressio unius est exclusio alterius," the mention of one thing excludes others; in other words, the presumption that omissions are intended. 2A Sutherland, Stat. Const. §§47:23-47:25 (6th ed.). Here, the Framers intentionally distinguished between majority and super-majority voting. Moreover, as evidenced in the Federalist Papers, they considered, and rejected, the alternative. The fact that the Constitution mandates supra-majority voting in some instances demonstrates the Framers intended to exclude it elsewhere.

Here's the problem:

You can read that rule of statutory construction, which is not a suitable rule of constitutional construction in any event, two different ways:

1) If it is not expressly forbidden, it is permitted.

2) If it is not expressly permitted, it is forbidden.

There is no logic at all in your reading of that rule of construction:

3) If it is not expressly required or forbidden, it is nonetheless forbidden.