ConfirmThem

By Paul Zummo Posted in Fillibuster — Comments () / Email this page » / Leave a comment »

Via Real Clear Politics I caught this Charles Fried column in the Boston Gobe. To be honest, I must confess to some confusion over the conclusion Fried is trying to draw with the article. He seems to essentially support the Republican position, but he also attempts to hug the middle.Fried's thesis comes in the opening paragraph.

This is really a political, not a constitutional fight, and in figuring which side to support, the public should at least not be confused by bogus claims of constitutional principle.

Well that depends who you are talking to. I can't claim to speak on behalf everyone on this site or for the majority of conservatives for that matter, but I believe that dogfight is ultimately both political and constitutional. First of all, I hold a semi-Aristotilian view that everything is, ultimately, political. We're all political animals, and as such everything we do holds some sort of "political" meaning. But let's aside the theoretical issues here. My concern - and here I think I can speak for most conservatives - is that the current judiciary holds no deep respect for our Constitution. They have subverted the plain meaning of the Constitution through activist interpretations designed to achieve a preferred policy aim. As Andrew has stated, we disdain all acts of judicial activism that seek a policy rather than constitutional end - be it a conservative or left-wing decision. Our goal is to confirm judges who will in fact interpret the Constitution according to its framers' original meaning, and who will not invent non-sensical theories such as substantive due process, and who do not find invisible "penumbras" that they concoct in order to justify their activist decisions. We believe we need judges like this because a constitutional republic cannot long stand if its central legal document can so flippantly be altered by unaccountable justices. Once the Constitution becomes a dead letter, then we lose our basic security against government intrusion. Thus, for most of us, this is very much a constitutional as well as political fight.

Yes, this fight has been politicized by special interest groups, but those very same groups that we decry are a natural outflow of the Constitution we're fighting to protect. What must be understood is that the constitution is itself a political document. It does not necessarily assume specific policy ends, but it establishes the basic ground rules in which politics flourish. And let's not forget the very political compromises that were forged at the time of its framing. The 3/5 rule, the electoral college, a bicameral legislature with only one House based on proportional representation: these are all the result of compromises worked out because certain groups most definitely had political ends. Small states did not want the larger ones to dominate them, so they insisted on a branch of Congress wherein each state would be represented equally. I think Charles Beard's thesis in An Economoic Interpretation of the Constitution of the United States is overblown, but few would deny at least a certain inclination on the part of the Framers to protect property rights.

Perhaps I am going too far afield of Fries' basic argument. But even here he seems inconsistent. Consider this paragraph:

The Constitution does not say one word about filibusters, but it does state that ''each house may determine the rules of its proceedings." Does it speak by implication? In the case of impeachments ''no person shall be convicted without the concurrence of two-thirds of the members" of the Senate. Either house may expel a member for disorderly behavior but only with the concurrence of two-thirds of the members of that house. Treaties must be ratified by two-thirds of the senators present. The president's veto may be overridden by two-thirds of each house. And to propose amendments to the Constitution, two thirds of both houses are necessary. It is therefore a fair inference that, unless another voting rule is prescribed, in all other cases only a simple majority is required. And no other rule is prescribed for the voting on each house's rules. To say that in a democracy majority rule is at least the default rule is hardly wild speculation.

[Emphasis mine]. Thus Fried acknowledges the inference that while the judicial filibuster is not strictly violative of the strict meaning of the Constitution, it certainly runs afoul of its spirit. So doesn't this make the issue at least partly a constitutional one?

But in the end, Fried won't let go of his central thesis.

So in the end it comes down to politics. Absent some specific prohibition, majorities have the power to vote legislation and change rules - that's called democracy. But in a democracy, power cannot be, or cannot long be, exercised without public support. And in choosing which side to support, the public should know what is really at issue - a question of politics.

This is very odd. He offers up a theoretical argument - that in a democracy majortities have the power to vote legislation and change rules - but then claims that this is a political issue. Well, I suppose everything is a political issue when we're talking about political theory. But it is also a constitutional issue. Can a determined minority of the Senate, based on the language of the Constitutional, prevent a determined majority form conferring its consent upon a President's judicial nominee. We may not all come up with the same answer, but that makes it no less of a constitutional issue.

Perhaps we should take small comfort in the fact that Fried basically supports the Republican position, even if he seems strained in doing so.