The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Thursday, May 19, 2005

The end in sight for Filibuster Follies?

With floor proceedings starting today on the Priscilla Owen nomination, let us indeed hope so.

The double-talk on both sides has been prolific: I supported the filibuster before I opposed it (and vice versa) would have been a more honest line for most participants.

But we cannot ask for miracles.

The nuclear option is a shenanigan; but, then, so is the filibuster! Both are parliamentary tactics. So inessential to democratic government is the filibuster that the US Senate is the (so far as I'm aware) the only national legislative body in the world in which it is permitted!

From the Republican side, one has the Chancery lawyer's contortions of language required to tailor claims of unprecedented Democratic activity to avoid the condemnation of tactics the GOP had themselves previously employed to stymie Clinton judicial nominations.

From the Democratic side, absurd suggestions of fundamental principle where only administrative convenience is to be discerned.

In particular, precedent is given the status of Holy Writ.

Naturally, when the filibuster is in question, thoughts drift to its use by Southern Democrats in the defence of Jim Crow. Whence to the decision of the Warren Court in Brown v Board of Education - which threw precedent in the garbage can!

Do nothing for the first time seems to be the Democratic watchword. Except, of course, that the filibuster itself came about as a result of a change in the Senate rules: the previous question was part of the first set of Senate rules approved in 1789, and was only eliminated when the rules were revised in 1806.

Thereafter, the bright line concept of unlimited debate ruled the roost - until the introduction of the cloture rule in 1917. Whence a certain difficulty for today's Dems: if unlimited debate is the principle they're fighting for - it's gone. Defiled and lost under the urging of Saint Woodrow Wilson, who feared a bunch of Western liberals [1] would put a spoke in the wheel of his war juggernaut.

Now, a woman is either pregnant or she isn't; and debate is either unlimited or it isn't. After 1917, it isn't. It's been limited. And, since then, the only question has been, how limited?

And, of course, the rules have been changed several times, generally to make debate more limited.

But is there a point of principle to be taken between, say, a required majority for cloture of two-thirds of members present and voting; and two-thirds of members duly chosen and sworn?

Or, between the latter and three-fifths duly chosen and sworn?

Or between a cloture rule applicable to measures (ie, bills) only, or to both measures and motions?

Of course not! What sort of principle is it that is preserved in a reduction of the cloture majority from two-thirds to three-fifths; but lost by a further reduction from three-fifths to a simple majority!

On the GOP side, there is a similar puzzle in the singling out of filibusters of judicial nominations from the myriad of varieties of filibusterable Senate business.

John Cornyn, for example, in his 2004 article (PDF) quotes various Dem senators against the filibusters in general, and continues (p19a):
To be sure, this Democratic claim that filibusters of legislation are unconstitutional runs into a significant obstacle, whatever its merits as an original matter: namely, the robust historical practice of such filibusters.

The constitutional discrimen between these two sorts of filibuster is that the one has been used a lot and the other hasn't?

Not entirely; he suggests a second distinction: whereas legislating is constitutionally a responsibility shared between the elected branches, appointments are primarily a matter for the executive branch, with the legislative in a supporting role, to be narrowly construed.

Of course, it's not necessary for supermajority cloture to be unconstitutional for the rule to be changed.

(Fisk and Chemerinksy's article (PDF) suggests that supermajority cloture is constitutional; but the supermajority requirement for changes in Senate rules isn't (p65a).)

Seconds out: Round One...

  1. Most of them Republicans, of course.

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