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January 13, 2005

Bluster About the Filibuster

I've wanted to write about the Senate's filibuster for awhile, and now that I've started this post I have a feeling I won't be able to say everything that's on my mind in one shot. So expect there to be more on this theme. Reading Kevin Drum's appropriately perturbed response to Orrin Hatch's by-the-numbers attack on the Dems' implicit filibuster threat, I decided I'd had about enough. Drum is right on target, but doesn't go far enough. Time to break it down.

Let's leave aside the questions about Hatch's own use of the power to prevent votes on Clinton's nominees. As Armando at Daily Kos pointed out a week ago in regards to Frist, the Senate GOP has shown a remarkable -- but altogether predictable -- shortness of memory about their own use of the filibuster. My focus, however, is on the legal and constitutional claims they have made which are equally dubious.

Hatch makes the familiar case for exercise of the "nuclear option," to declare from the chair that because filibusters preclude the Senate from carrying out its function to confirm nominees it is unconstitutional and therefore cannot be used to prevent a floor vote. The key constitutional provision is found in Article II, Section 2, Clause 2:

[The President] 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.

Hatch argues that the filibuster creates a "constitutional crisis" by preventing a vote on the nomination. Here's how he elides the constitutional claim:

Democrats' new filibusters abandons this tradition and is unfair to senators who must provide the "advice and consent" the Constitution requires of them through a final up or down vote.

Er, that's it.

How does he reach the conclusion that preventing a floor vote on a judicial nomination is unconstitutional? He doesn't say. Nor does the plain language of the clause lead obviously to such a conclusion. While it does say that the Senate must consent to the appointment, that implies only a positive action; failing to provide consent, whether by a majority of nay votes on the floor or by not voting at all, is sufficient to reject the appointment.

As Drum points out, a filibuster is far from the only way a nomination can be blocked before reaching a floor vote. A favorite trick when Hatch was chair of Judiciary during the Clinton years was to bottle nominations up in committee by not putting them on the agenda. That doesn't seem any different.

Two other methods historically have been at least as important. One is the "hold" where a senator communicates to the Senate leadership that he or she would withhold support for a unanimous consent agreement if the matter were to come up. The reason this has power is that, in the absence of a powerful Rules Committee like the House has, the Senate's ordinary business depends on unanimous consent agreements to specify what bills will be considered when, who may speak, what amendments may be offered or if any may be offered at all, and when votes will take place. The quiet threat of a hold ordinarily is enough to take an issue -- including a judicial nomination -- off the agenda, at least temporarily.

Another method is the "blue slip." This was a custom in which a nomination would not move forward without the consent of both home state senators. As People for the American Way describe, while the blue slip had been around before, Hatch was particularly rigorous in applying the procedure to Clinton's nominees. On some occasions, Republican senators used the opportunity to prevent a nomination from being considered by Judiciary, let alone coming to the floor.

(For that matter, wouldn't a president who fails to consult with the Senate prior to making the nomination run afoul of the "advice" part of "advice and consent?" I'm not sure how far I'd push that argument, but it seems no more implausible than the GOP's creative reading of "consent.")

There is another provision that Hatch, Frist, McConnell and the others conveniently overlook as well: Article I, Section 5 which says that each chamber has the power and responsibility to make the rules for its own proceedings. The Senate can require 51 votes or 67 votes, or 13 or 79 or 43 for that matter. It can require that all votes be held on the third Tuesday of every month and that senators speak only through ventriloquist dummies. Above all, the Senate can decide for itself whether its business will use a filibuster rule. Absent clear indication otherwise in Article II, the Constitution seems clear on the matter.

By the same token, Hatch has no basis to claim that the 60 votes needed for cloture satisfy the constitutional "requirement" any less than a simple majority vote on the nomination itself would. Despite their cries to the contrary, nothing in the text of the Constitution says or implies that a vote taken by the House or Senate must be by simple majority. That is for the chambers themselves to decide.

The Constitution does not ban filibusters for judicial nominations, and any attempt to manipulate the Senate's rules on the basis of such a claim is utterly disingenuous.

But because the clause does not spell out the procedure, the Republicans have just enough wiggle room to make their claim. Just. So let's take up one of their favorite tricks and ask what the founders had to say on the subject. When the Constitution was drafted, did they intend that the Senate vote on every nomination made by a president? How was its role conceived? Tomorrow's post will cover these issues.

08:16 PM in Politics | Permalink

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HATCHET JOB....Over at Boffoblog, fellow Californian John Baughman was happy to see my takedown of Orrin Hatch's self-servingly selective memory the other day — but thinks Hatch's central claim that judicial filibusters are unconstitutional deserves at... [Read More]

» Nuclear Option in the Sentate from QandO
Question: Who's really using the "nuclear option" in the judicial nomination process? The Democrats contend it's the Republicans through their threat of having filibusters within the nomination process declared unconstitutional. Republicans on the o [Read More]

Comments

I think you've taken Article 1, Section 5 a bit too far. While it is not said specifically in the text of the Constitution, it is a strongly held principle of parliamentary procedure that any motion passes with a simple majority unless another standard is specified. I'd also argue that majority rule is implied by Article 1, Section 3, Clause 4; it would not make sense to give the Vice President a vote in case of a tie unless a tie meant something. While I suppose that either chamber could make a rule requiring a supermajority for regular business, I do not believe they could make a rule to require less than a majority. (Either way, such a rule must be adopted by a majority _and_ must be amendable by a majority, according to Article 1, Section 5.)

Posted by: jmm8356 | January 14, 2005 at 07:49 AM

You are right, to a point. Here is what Article I, Section 3, Clause 4 says: "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided." That is to say, if the Senate creates a procedure for itself that requires something other than a supermajority [Correction: simple majority. Oops.], then the VP has no vote. The clause does not require that they provide the VP such an opportunity.

And while you are correct that ordinarily it would take a simple majority to create the rules in the first place, note that in 1806 the Senate, in the course of revising its procedures, did away with the rule that permits a majority to limit debate. Until 1917, in fact, there was no cloture rule so that implicitly the Senate worked under something darn close to a consensus rule for ordinary business whenever a filibuster was invoked.

Finally, while Article I, Section 5 says a majority is considered a quorum sufficient to conduct business, that is not the same thing as saying it takes only a majority to amend the rules of a chamber. As I see it, 199 years of Senate filibusters render that moot. (I admit, though, that my use of submajorities was largely facetious. My point only was that the Constitution was almost entirely silent on such matters.)

So, while I take your point, I don't think the constitutional or historical record is quite that clear, and I believe that my interpretation is no more dubious than that of the Republicans' claim about the unconstitutionality of the filibuster.

Posted by: Boffo | January 14, 2005 at 09:40 AM

The Supreme Court has already addressed this question in United States v Ballin (1892), when it held that it takes only a majority of the quorum for either the House or the Senate to act, absent a restriction in the Constitution itself. Your point within the larger post (that the Senate could set formal supermajority rules for confirmation, as opposed to the informal bar via procedural delay (filibusters)) is incorrect. -- HC

Posted by: Henry Clay | January 22, 2005 at 06:16 PM

A majority for a quorum is not the same as a majority to decide; one is the precursor to the other, but they are not synonymous. Check out my post which addresses Ballin. In fact, I suggest that the decision supports my interpretation.

Posted by: Boffo | January 23, 2005 at 03:02 PM

I just spoke to constitutional scholar Bruce Fein about this. (He spoke at my school.) He says that it's not really a constitutional challenge. Yes, by implication, that means Hatch does not know what he is talking about. But what else is new.

What the Senate GOP wants to do is simply change the Senate rules so that filabusters no longer apply to judicial nominations. As Boffo correctly notes, the Senate can do whatever it wants with its internal procedures. Right now, it only takes a majority vote (itself not subject to filabuster, as I understand it) to change the Senate's internal rules.

So...with the Senate in GOP hands, 55-45, why not go "nuclear" already? Because, the GOP does not have the votes. The usual suspects--Snowe, Collins, Chaffee--will not go along with it. Add to that McCain, who I know is wary of the idea. But here's what Bruce Fein said: Voinovich and Warner are also opposed. I did not know that. So that's 6 right there. (All 44 Dems + Jeffords are opposed to getting rid of the filabuster for judges.)

Clearly, Frist is not dumb enough to go nuclear if he does not have the votes. Until and unless Voinovich, Warner, McCain, or other GOP senators who oppose the rule change change their minds, it's not going to happen.

Again, it's not a constitutional challenge. It's just a group of senators trying to change internal senate rules. That group is 40-something strong and needs to get to 50 before it'll happen.

Posted by: mitchell | March 23, 2005 at 07:39 PM

Posted by: dfc | December 05, 2006 at 08:24 AM

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