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By DanCT Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Stuart Taylor Jr. has an interesting but misguided article in the latest issue of National Journal, entitled " Filibusters: Two Wrongs Won't Make Things Right" (subscription). His basic premise is that the filibuster battle is about politics rather than principle, and that the Democrats and Republicans are equally culpable. In pursuing his relativistic argument that everyone is equally at fault and neither is more right than the other, he attempts to appear moderate and balanced, but he misses some obvious and critical issues that form the basis of the principled GOP stand. To consider those issues would inconveniently belie his entire moderate-sounding thesis. He'd have to concede that the right is right. What, then, are the issues he misses and/or glosses over? First, Taylor explains clearly and succinctly what the Senate Democrats have been doing:

Senate Democratic Leader Harry Reid and others say that they are standing up for the right to "extended debate" on nominees. Bosh. They are standing up for the right to deny up-or-down votes, forever, to nominees who can't win the 60 votes required by Senate Rule 22 to end a filibuster.... Democrats' current use of the filibuster—the only nominee-stopping weapon available to the minority party— represents a major escalation of the partisan warfare over judicial appointments.

These points are obvious. What is also obvious is that there needs to be a forceful GOP response to move the Senate back toward civility and dignity with regard to judicial nominations. (Did you in your wildest dreams in the early '90's think you would one day look back to the Clarence Thomas hearings as an era of civility and dignity? At least the man got a vote...)

So we begin with the profoundly conservative principle of defending the long-established tradition of Senate action on judicial nominees. I'm sure Mr. Taylor would agree that it would be unprincipled not to do something. But what? Without extreme pressure the Democrats clearly won't back away from the routine use of the filibuster against nominees that they perceive as ideologically opposed to their social agenda. So, the Republicans are threatening to use the Byrd option (i.e., changing precedent with regard to interpreting Senate rules --- something that Byrd (D-WV) did four times in the 1970s). Taylor then makes his strongest argument against the GOP stance:

A vote to muscle through a fundamental change in the filibuster rule by a narrow majority would make it blindingly clear that the same could be done to any other rule, at any time, by any 51 senators.

Nonsense! The GOP action is a direct response to atrocious treatment of the nominees. Without the "major escalation in partisan warfare" by the Democrats, there would be no talk of "nuclear option." There would be no discussions about the intricacies of Senate rules and procedures on the front pages of our newspapers. There would be no talk of the Democrats forging a "constitutional revolution". It is the gross abuse of a Senate rule that has led to calls for change. For the GOP to refuse to act would be unthinkable. If a change is made, it will not only stop the present Democrats' abuses from continuing, it will also prevent similar abuses in the future should the GOP be tempted to retaliate. That can only be a good thing.

Taylor then argues that a future majority that is motivated by strictly partisan concerns might look back to the GOP's action as precedent to change Senate rules willy-nilly to ensure partisan advantage over the minority.

...whether it be later this year, next year, or whenever Democrats regain control of the Senate, the temptation to follow the "nuclear" precedent by mowing down other minority protections would eventually become overwhelming.

Nonsense! Aside from marking a major break with tradition and aside from gross abuse of the nominees, what makes this case unique and distinct from a legislative filibuster is that the Senate's juvenile attitude of "but we don't want to play, Mommy" infringes on the Constitutional power of the President to make nominations. The purpose of filibustering a nominee is to force a compromise, "moderate" nominee from the President. However, the Constitution explicitly gives the President the sole power to nominate candidates. The framers didn't trust an assembly such as the Senate to be able to rise above partisan bickering to come up with the best candidate. Competing factions would battle each other to come up with a compromise candidate. In the Federalist papers (76), Hamilton gives the rationale: compromise nominations will result in mediocre appointments. Two centuries later, Kaus picks up on Hamilton's argument and writes:

Forcing a compromise nominee isn't a very satisfying solution. An unprincipled go-with-the-flow O'Connor/Kennedy centrist...is much more likely to emerge from a post-filibuster negotiation than a principled nonactivist.

When the White House and Senate are controlled by the same party, it is crucial to take advantage of the situation to nominate high quality people who aren't afraid to make clear, principled, non-activist decisions that may well offend a vocal minority that wants its own policies preferences enacted from the bench.

The Senate GOP is acutely aware of the Constitutional issues at stake and the carefully crafted checks and balances between the branches of government that are threatened when a Senate minority attempts to usurp Presidential authority by filibustering. There is keen awareness of the distinction between legislative filibusters (which is the Senate minding its own affairs) and filibusters of judicial nominees (which is the Senate meddling in the affairs of the President). The Senate's role in the appointment process is to either consent to the President's nominations or reject them. It is decidedly not the Senate's role to foist the will of a minority of its members onto executive branch deliberations about whom to nominate.

It is right and wholly proper for the President to protect the power of the Presidency (not his Presidency, but the Presidency in general) against the assault launched by the Senate. He has pressed the issue by re-nominating candidates that Senate refused to act on in the previous session, by making judicial nominations an issue in the Presidential campaign last year, and by giving public speeches about the importance of candidate. He would be fully justified in doing more because the issue is not simply a matter of Senate proceedures, nor a matter of strictly partisan concerns. It is also a matter of protecting the Office.

Taylor later writes:

the Republican argument that the Constitution requires up-or-down votes on all nominees rests on emanations and penumbras from the Constitution more far-fetched than any of those imagined by liberal activist justices to protect contraception and abortion rights.

Well, not nearly as far-fetched as the argument that the fourteenth amendment guarantees an unrestricted right to abortion or gay marriage, but he does raise a good point that filibustering of nominees can only be deemed unconstitutional through the sort of "emanations and penumbras" reading that conservatives so rightly rail against. The advice and consent clause reads "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…� It says that the President's nominees take office upon Senate consent, and there is no provision for nominees to take office if, in a hissy fit, the Senate refuses to act. The presumption was that the Senate would not abrogate its duty to act, as it consistently had acted on judicial nominees over the 200+ years prior to the recent actions of Senate Democrats.

Taylor wrongly argues that the filibustering of nominees is not fundamentally different from blocking nominees by other means:

Senate rules have long been used-—not least by Senate Republicans during the Clinton years—-to stop thousands of nominees, many of whom could have won up-or-down votes, by denying them hearings, burying them in committee, using individual "holds," and employing other tactics of delay.

It is not an accident that Taylor does not cite a single instance when a candidate with majority floor support was blocked by procedural delays in committee and prevented from taking office. Such instances are the exception. If they weren't, the majority would use its power to override the tactics by a simple majority vote. On the other hand, when a majority blocks nominees in committee, the presumption is that the nominee would not survive a floor vote. The nomination is thus rejected in committee. Filibustering, though, is distinctly different because it is a minority riding roughshod over the majority, whose right and duty to advise and consent, to confirm or reject is denied.

To "prove" that the GOP's fight is unprincipled, Taylor then argues:

Imagine for a moment the scene that would be unfolding if the shoe were on the other foot—if Democrats had won the presidency and the Senate and were now trying to put a few crusading liberals on the bench.

Senate Republicans would be filibustering...

Hold on there, pardner! Republicans have often been in the minority in the Senate while a Democrat sat in the White House. Crusading liberals have frequently been nominated to be seated on the bench, but Republicans never responded by filibustering the nominees. As Taylor concedes earlier in his article, the filibustering by the Democrats represents a "major escalation in partisan warfare." It is interesting to note that filibustering was indeed discussed by Republicans when Clinton was nominating crusading liberals for the bench, but it rejected as being a debased tactic that wrongly infringed on the power of the President to nominate and restraining the Senate's role to confirming or rejecting.

Would they stoop to the tactic in the future? The evidence indicates that they could very well and probably would. To start, several wobbly Senate Republicans have said that they want to defend the Democrats because they want to reserve the tactic for their own use in the future. Since the Democrats have provided ample precedent, principled Republicans in the Senate would not long be able to resist the pressure to continue the escalated partisan warfare initiated by the Democrats. In fact, in the 90s they filibustered approximately two of Clinton's executive branch nominees (not judicial). Principled conservatives (like Charles Krauthammer, as quoted by Taylor) were furious: "Republicans have established a terrible precedent. Requiring nominees for high office to get not 50 but 60 votes is a bad way to run the country." He was right then, and folks that are echoing him now by saying "filibustering judicial nominees is a terrible precedent" are right today. The solution is not to continue escalating the partisan warfare by vowing payback time when the tables are turned; the solution is to find a solution. With hopes for compromise fading, the Byrd option may be the only option. So be it.

Finally, Taylor inadvertently closes with a great argument why the filibusters should be ended:

It is said that the value of a sword of Damocles is not that it falls, but that it hangs. The value of a rule allowing nominee filibusters is not that it should be used, but that it should hang over the process, and serve as a moderating influence on the president.

That is exactly why the filibuster should be eliminated, and that is exactly the argument the framers had in mind when they gave the President sole power to nominate: keep the Senate out of the nomination process so excellence rather than inoffensiveness is given primary consideration. Meandering judicial decisions written with a self-conscious desire to be moderate or inoffensive make for meandering, unsettled, muddled law. The President needs to be free to nominate whom he sees fit, while the Senate restrains its role to either confirm or reject nominees. End the filibuster now.