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.