Once More, With Feeling

I've already blogged a few times on the Senate filibuster. For newcomers, I'm agin' it. But what surprises me is the argument I consider the weakest defense seems to be popular. I first heard it from Hendrick Hertzberg in The New Yorker and assumed he made it out of desperate partisanship. But then Jacob Weisberg and, more recently, Mickey Kaus, not only took this argument seriously, but added to it. So I'm going to try to collect my claims into one place and see if they hold up. By the way, I'm no legal expert, but since I believe this is a purely political debate, I don't think that matters.

Flawed Tactic:

Unlike, say, majority vote, the filibuster is not commanded by the Constitution. It's merely a procedural rule that can be changed at any time. (I believe the House long ago got rid of its filibuster.) Its purpose, in theory and practice, is to stymie the majority--it has nothing to do with unlimited debate (it actually prevents debate) nor is it a building block of our Democracy, or any other of those things progressives are now claiming after decades of saying the opposite.

In other words, it's a shameful tactic that denies the public the representation it voted for, both in the legislative and executive branches. (I think there are reasonable arguments that it's unconstitutional, but since neither side is arguing that, I'll leave it alone.) I don't even think I need to go into the unfortunate purposes for which it's historically been used.

Without it, there are still plenty of things the Senate minority (without a President in the White House) can do, and has done. It can attempt reasoned debate, of course. It can make alliances with moderates from the other side. It can horse trade. It can appeal to the people. Then there's the ultimate solution--if what the majority does is unpopular, the people can vote them out. (If what they do is popular, that's good, isn't it?) The minority has a right to be heard, but it has no right to prevail.

So these are all reasonable measures. The filibuster is an unreasonable one that prevents the Senate from acting as contemplated by the Constitution. It is a flawed, improper tactic that is wrong REGARDLESS OF WHY IT IS USED. Making distinctions as to when it should be used are pointless. (Republicans want to ban the filibuster only for judicial nominations. While I see this as colorable (see my next argument), I find the claim extremely weak.)

Executive Power:

If there is any constitutional difference between voting on legislation and voting on judges, it cuts in favor of the filibuster being used only against legislation.

Why? Article I of the Constitution makes it clear that the Congress holds all legislative power, and lays out what that entails. The central purpose of the House and Senate is to legislate.

The right to name judges, however, is given to the President in Article II. It is an executive power, not a legislative one. The Senate is to give its "Advice and Consent." (It is widely accepted this means majority approval, since other things, such as treaties, explicitly require more.)

Now it's one thing for the Senate to screw over the majority through their procedural rules--presumably, if it gets too bothersome, they could change the rules. In other words, lawmaking is their domain, they can call the shots.

But it's another thing for a legislative body to stymie an executive power through its procedural rules. Through these rules, they effectively avoid the role the Constitution requires them to play.

What's Worse:

Now we get to the weird heart of the argument: you see, filibusters are bad in a general way, but they're okay to stop judges (turning history on its head) because, well, because bad judges are just so much worse than bad laws.

Sez who?

Kaus argues that federal judges serve for life and can't be repealed like laws. Furthermore, judges (nowadays) have super-legislative powers and are not accountable to anyone.

I don't see it. First, Kaus et al sure treat legislation, especially major legislation, as if it's pretty unimportant. Laws can effect hundreds of millions of citizens, change how we live, cost trillions of dollars and last well beyond our lifetimes. Look at the Civil Rights Act of 1964 which was filibustered (unsuccessfully, ultimately). It arguably changed the entire character of our nation, and certainly got involved intimately in millions of lives. And it's still the law, while I'd guess the vast majority of judges nominated back then are retired and/or dead.

Big laws are the kind of laws you want to filibuster. Though I guess, using Kausian logic, we need to measure how important the law is before we decide if it's acceptable to filibuster or not.

As to the power of federal judges, let's separate them into the Supreme Court and lower courts.

Lower court judges (who, by the way, are what the filibuster fight at present are about) are, in fact, quite constrained. They are not only constrained by the laws (as they are supposed to be), they are constrained by precedent, and by the threat of being overturned. Furthermore, one judge, even an appellate judge, has little power in the overall scheme. She is one of hundreds. She won't be hearing most significant cases, and when she does, she will only be one vote in three (or more).

As to the whole lower court federal judiciary, even if Bush were nominating nothing but radicals, he could only change so much for so long. There's a regular turnover, and the next President will get to name plenty more judges, as will the next.

Regarding the Supreme Court, as much power as they may seem to have, they are still constrained quite a bit by the law. (Compare this to the legislature, who can create something out of nothing.) Lay people might not know this, but unanimous decisions are common on the high court, so right and left can agree when the law is clear. (By the way, a radical court such as we've never had and won't be getting any time soon, that all but ignores the law, might soon find out that the Congress has all sorts of ways to get around them.) They're also constrained by precedent, at least a bit--most judges would prefer not to overturn past decisions.

Then let's remember we're talking about one judge at a time. If this judge is a wild-eyed radical, he'd still need to convince four others to vote with him. If five judges vote a certain way, in a controversial case, with plenty of people rooting for both sides, just how radical can they be? (And if the first nominee replaces Rehnquist, how much more "conservative" do you expect him to be--at worst you'll have a wash.)

By the way, though we may have forgotten it, Supreme Court justices do leave. It actually happens on a fairly regular basis, honest.

Furthermore, because the Supreme Court gets so much scrutiny, it'll be easier for the Senate opposition, even if in the minority, to make a case against a "radical" nominee.

Another thing about judges is it's hard to predict how they will act. Republicans have nominated 7 of the 9 judges on the Court today, but they regularly come down with decisions, even on "big" issues (school prayer, abortion, affirmative action, campaign finance reform), that frustrate the party that put them in.

Can the President change the character of the judiciary? Sure, a bit. That's one of the reasons we vote for him. But if he goes too far, the biggest protection is still democracy--running against judges, in fact, has been a successful Republican strategy for decades. If the Bush judges are half as radical as their opponents make them out to be, this'll give the Democrats years of chances to take back the Congress and the White House.

The people have voted in Republicans. In the past, they've voted in Democrats. No one knows what the future holds. But even with a politicized court, is it that bad to let the Constitution work as designed?