The Bush administration wants to get rid of the filibuster in the US Senate when voting on nominations to the US Supreme Court. Now the prospect of replacing left wing activist judges with right wing slightly less activist judges seems like a minor move in the right direction, however… I am uneasy because although this (none too civil liberties inclined) government adjusts the underpinning rules to impose its will now, the shoe could so easily be on the other foot in a few years, with President Hilary getting to ram through some ghastly left wing jackanapes using the very mechanisms Bush looks likely to put in place next week.
And anyway, anything which buggers up the process of laws getting made (which filibusters certainly do) tends to appeal to me instinctively. But is the filibuster a good thing when it comes to the calculus of whether or not the US system is conducive to producing liberty? Is that peculiar institution a good way of curbing legislative excess or is it just a way of locking in bad stuff already on the books and making the system un-reformable?
My gut feeling, like Perry’s tells me filibusters are a good thing. Moreover, I would require a 60% majority for EVERYTHING: laws, regulations, appropiations.
But – every piece of legislation/regulation should have a susnet clause – that is: if not re-approved (by the 60%) it expires after x (10, 15…) years, automatically.
Perry,
The judges GWB has nominated are not activists, but constructionists — in other words, they don’t interpret laws according to modern-day standards and mores, but according to the laws’ original intent.
For the socialists who want to turn the Constitution into a living, malleable thing, this would spell disaster for their attempts to remake society according to collectivist principle.
Hence the filibustering.
I think it can be a bad thing because what’s the point of America getting the leaders we want to represent us when you’ve got a minority voice leader filibustering against a law that the majority in America wants passed? It hinders the law making process. Or what if the filibuster is against changes in our system that the majority of Americans approve of? It would be different if the filibuster represented the majority voice. I guess it just depends on the filibuster.
Well, doh! It’s always the minority voice that filibusters.
But that is also the point of the US Constitution, Denise. If you want to live in a democracy where the majority (or more correctly, the plurality) can vote for a government who can then pass more or less any legislation they want, all you have to do is move to Britain.
The whole point of the US system is that it is NOT an unrestricted democracy, so using the argument you do against the filibuster would just as well be applied to argue against the entire US system of restricted democratic lawmaking.
Perry,
This isn’t legislation. These are appointments to the judiciary that are being made under Section 2 clause 2:
:” He shall have Power, by and with the Advice and Consent of the Senate,…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.”
http://www.house.gov/Constitution/Constitution.html
Like cabinent officers or ambassadors,judges also should be given an up or down vote.
The filibuster of judges is a recent Democratic parlimentary tactic that they’ve started using when they lost control of two branches of government.
Any reduction in the use of the filbuster by the Republicans will be to eliminate its use over these appointments.
Budget bills do not allow filibusters.
http://en.wikipedia.org/wiki/Filibuster_(legislative_tactic)
To clarify, the filibuster question applies to all federal judicial nominations, not just to Supreme Court nominations (of which there have been none during Bush’s tenure).
A President has other tools available to him to get around the threat of a filibuster over judicial nominations.
Article 2, Section 2 of the Constitution allows the President to make appointments when the Senate is in recess; the appointments last until the end of the next session.
Article 2, Section 3 allows the President to convene either or both houses of Congress in “extraordinary Occasions”; the President could theoretically keep the Senate in session straight through 2008 (not allowing the Senators to return home to campaign, forcing them to be in session on Chrsitmas, and so on). This is the step I’d like to see the President take.
While forcing government inaction is, in the general case, a good thing, in this specific case, it is being used to tilt the governance of the US in a way that has not been used before.
If filbustering were to become the standard M.O. this diversion would, in the long term be corrected. However, you can be darn sure that next time the dems are in power, *they* will get rid of filibustering. So it makes sense for the repubs to get rid of it and cut their losses as early as possible.
Jacob, your 60% rule would create the same result as the current situation. Although Judges only need a 50% approval vote, you need 60% to beat the filibuster. I’m not saying if that’s good or bad; just mentioning it.
I always like Heinlein’s suggestion: 2/3rds to pass a law, 1/3 to repeal it.
Perry, the Tyranny of the Majority always seemed to be a funny concept. You could say that simple majority rule would result in that Tyranny, but anything more than simple majority allows a minority to impose conditions on the majority. That prevents the majority from doing impulsive & intrusive stuff, but also can prevent decisive action when it’s needed. I don’t pretend to have the answer, but it’s something I think about.
Personally, I think the best thing to do is allow simple majority, but aggresively enforce the laws against the people who write them. As long as they have to live under the same law the rest of us do, it shouldn’t get too bad (I hope).
If we Americans put Hillary in the White House and give her a Democratic majority in the Senate, then we’ll deserve what she does to the judiciary. The solution here is not filibusters, but intelligent voters.
No, the filibuster is a bad thing. (1) it doesn’t slow government as a whole, it just forces internal factions to trade favours (2) when politicians trade favours, nine times out of ten it’s your ass their selling (3) best case, compromize slightly dilutes a disaster. Worst case, it sabotages a reform. This is an improvement?
Perry de Havilland: Supporter of the tyranny of the minority in an elected body.
Oh, that’s right, people like Perry don’t believe in any sort of legislative body — to much tyranny of the majority and all, old pal. Of course, people like him have never, ever, proposed any workable alternative. Nor has there ever been any society on earth that has organized itself in a way that passes muster with Perry. Jeez, Perry, why is that?
We, as free citizen, expect our wishes to be carried out by those we elect. It’s little obstructionists, like you and Robert Byrd (KKK-West Virginia), who think that you should have a veto power just because you don’t like something. No matter how few people support you.
Get a clue, you head-up-your-ass utopian. People like you, if you ever attained power, would be no different than the Bolsheviks in Russia, or the Nazis in Germany. You would gladly trample all over the democratic rights of all of your fellows citizens. Because you, after all, know so much more about how society should be ordered.
Steve, in such a situation, should there not be a mechanism in place that would protect the minority (intelligent voters) from the majority (the unintelligent ones)?
Alisa, the answer is “no”.
First, I reject that elitist notion entirely. Second, who exactly decides who the “intelligent minority” is who needs protecting? Any such mechanism will instantly be subject to considerable abuse.
It’s a cure which is worse than the disease.
Actually, our system contains considerable safeguards against the tyranny of the majority. We call it the “Bill of Rights”.
But if you ask people like Kim du Toit, the ultimate defense against all these things is the Second Amendment. I’m not so sure he’s wrong.
David Crawford, all the article did was ask a perfectly reasonable question about what is obviously a highly imperfect system. The entire US way of checks and balances is about placing obstructions in the way of the use of political power. If Perry is an obstructionist seeking to thwart the will of the majority then he is in good company, but which I mean the founding fathers of our country who ensured we would have a constitutional republic that enshrined certain rights by placing them beyond the reach of politics rather than the far more democratic British style parliamentary system in which everything is up for grabs if the majority wants it that way. No country has ever had or will ever have perfect governance and so anyone who thinks it can not be improved on or criticized is a jackass. Like you for example.
Steve, I guess I know you well enough to remove any suspicion of elitism on your part.
As to the Second Amendment, exactly so: I am not so sure he is wrong, the flip side of which is: I am not so sure he is entirely right, either:-)
David Crawford, calling libertarians Utopianist is a strawman argument, we don’t claim that libertarianism would create a Utopia (though we frequently posit that things would be better), we just want other people to get the hell out of our lives.
Rich
The issue only came up because the Donks have lost all power to progress toward their political goals operating within the system. Fillabuster is meant to be used on spending (legislative) bills. It was never intended to be used on appointments. This is a new and last ditch effort by the Dems to retain some small amount of political power. Small becuase there are several ways to get around a fillibuster. I don’t think the administration even cares, they are just using the issue to help the Democrats go over the cliff. I think Karl “Darth” Rove has his sights on the ’06 elections. He is manuvering the Donks into a position where they either fold and become the party of Dehmmicrats or they close down the government, which would help get them removed from office. IIRC there are 8 Democratic senate seats that are vulnerable. Byrd the ‘Klugal’ and Ted ‘I only drowned one woman’ Kennedy are up in ’06 I think. Pretty sure about Byrd, not so sure about ‘Ol floater’. This is the political version of the Israeli Targeted assassination program. Got Dashole last time, get Byrd this go-around. The democrats are responding with targeted attacks on the Republican leadership, using the legal sysytem and not the ballot box. They puched out Lott on trumped up charges and now they are after Delay. The Lott thingie worked very well, since Frist is fighting out of his weight class as Senate majority leader. Same with Reid. No party will put forth effective leaders if it leads to them being targeted. I expect to see a shadow government form over the next several decades, with political leadrs doing their job in closets and back rooms while some patsy stands up front and dodges the bullets. My gut feeling is that this is a bad thing.
That’s a pretty rosy view of American politics, Perry. Isn’t it more like if you don’t want to live in a country where the majority can do anything it likes after winning election, you can move to the US where a minority of Democrats can impose judicial activists as soon as they get into power who can themselves do anything they like and then render these decisions beyond democratic control? All Bush is trying to do is replace some of these people by those who know and respect the limits of judicial power prescribed by the constitution.
Really? How so?
Well, it sounds like you’re postulating a system whereby the majority cannot get what it wants even when it has a clear legislative majority behind it. In fact, the truth is the Democrats don’t even need a voting or a legislative majority to implement and impose its ideas: it simply appoints people to the courts who will do that for them – thereby removing also much prospect of democratic reversals.
All I was doing was pondering if the filibuster is, on balance, a good thing by virtue that it make legislation harder to implement… and as I generally want less law rather than more law, at first glance that makes the filibuster a good thing. However as unmaking dismal laws can also be filibustered, it seems to me that the filibuster may not be such an unalloyed joy as might be the case otherwise. I was not really saying much more than that. But sure, the whole idea of limited government is that often the majority will not be able to get what it wants if it falls within certain categories. People, sometimes even a large number of people, often want monstrous things and are prepared to vote for folks who will give it to them… and not letting them have those things regardless is why systems (like the US) enshrine ideas like a Bill of Rights.
In reality I tend to view the great majority of all politics as something which generally represents the worst our species has to offer and is at best a necessary evil, so no, I don’t think I have a particularly rosy view of politics.
And don’t forget that the Fillibuster we’re talking about is not your Grandpa’s Fillibuster, which I shall call Fillibuster Classic. It’s the new and improved within the last 25 or so years Virtual Fillibuster.
Fillibuster Classic: As is still the case, any Senator that has the floor can talk as long as they want. Period. This is the old school kind where you have Senators talking all night, and all Senate business stops until they reliquish the floor, or a cloture motion passes.
Virtual Fillibuster: No one has to talk all night, doing insane things like reading the names out of the phonebook because you have to say SOMETHING to keep the floor. Nobody wants to be on C-SPAN doing that! So they invented a new and improved Virtual Fillibuster for the cable tv ear: other Senate business goes on in parallel, and the motion being ‘fillibustered’ (in this case the judges nomination) never comes up for an up or down vote until the side opposite the fillibuster that wants the vote can muster enough votes for a cloture motion to pass. It makes the political capital (and physical endurance!) required to stall a nomination drop from ‘a lot’ to ‘any 41+ senatorial miniority’.
But they ALL voted for REAL ID anyway, so what the big diff is I don’t see.
Perry,
I think you’re right to characterize the filibuster as being of neutral value. While it can stymie government regulation, it can also stop efforts at de-regulation.
You might be interested in this case ( http://www.ij.org/private_property/connecticut/ ). To sum it up, the state of Connecticut wants to seize private property using the power of eminent domain so that it can be handed over to a corporation for development on the grounds that this move can boost revenue for the state. The Institute for Justice is a libertarian group opposing Connecticut at the Supreme Court.
President Bush’s judicial nominees will be less likely to buy into nonsense like this.
“… it sounds like you’re postulating a system whereby the majority cannot get what it wants even when it has a clear legislative majority behind it.”
Well, yes. Is a “majority” some sacred cow which must always have it’s will no matter what ?
When we have a controversial issue, on which opinion is divided more or less 50-50%, we should not adopt new measures on a slim and random margin to one side or the other. A 60% percent majority has more moral authority, it is immune to randomality.
As to the 60% rule preventing “unmaking of dismal laws ” – I’m a conservative in temperament. You need a 60% to change things. Lamentably I can’t have a 60% rule for preventing things I don’t like and a 50% rule for adopting reforms I support. So I’ll settle for 60% on everything.
You can look at it also this way:
If there are two schemes A or B coming up for a vote – then under 50% rule either A or B will be necessarily adopted, while under the 60% rule it is well possible that neither A nor B will be accepted. Which is the whole point of the 60% rule.
Are filibusters good or bad? Filibusters, like beauty, are in the eye of the beholder, I think; Senate minorities love them, Senate majorities loathe them. I am usually all for any process that slows politicians down to a crawl, but in this case it is hard to see the debate over the filibuster as anything other than a refusal by the Democrats to accept that they are now in the minority. The Constitution gives the power of judicial appointment to the President; the Senate’s role in the process is to say yes or no and nothing else. As far as I can see, the only previous use of a judicial filibuster was in the late 1960’s, when Abe Fortas was up for Chief Justice and there were numerous charges of personal corruption against him; both parties said no to his nomination. Other than that, the filibuster has been traditionally used to slow down legislation, not appointments, with the legislation most often targeted for filibustering being civil rights legislation opposed by Southern Democrats.
What the Democrats are trying to do here is to use the Senate rules to reinstitute the legislative veto, which was declared unconstitutional in 1983. By demanding that any judicial nominee get 60 votes, instead of a simple majority, the Senate Democrats are rewriting the Constitution to fit their straitened political circumstances. To use the filibuster as they have been using it is an abuse of Senate rules and an attempt to prevent the President from using powers given him by the Constitution. I know why the Democrats are doing this: they want to protect government by judicial fiat, in which liberal judges legislate their social agendas from the bench and conservative judges, with their concern for stare decisis, allow the rulings of their more liberal brethren to stand despite their doubts about the overall wisdom of these decisions.
And I’m pretty sure that in the back of everyone’s mind is the image of Jimmy Stewart talking his head off for a good cause in Mr Smith Goes to Washington. Well, that’s not so, as David points out above. If the Senate Democrats actually had to go to the lectern and spend all day talking then the filibuster would go back to being a parlimentary weapon used only as a last resort; the virtual filibuster makes filibustering a lot easier to do and consequently makes it, as a practice, that much easier to abuse.
Jacob, did you read the rest of my post?
“Now the prospect of replacing left wing activist judges with right wing slightly less activist judges seems like a minor move in the right direction ….”
The “slightly less evil” cliché is often apt when applied to the American right, but certainly not in this context. I’ll give you the benefit of the doubt and assume that yours is a failure of knowledge rather than of morals; so here’s some help:
One of the nominees being filibustered is Justice Janice Rogers Brown. I set about to collect a few representative quotes of her views, but our friends at People For the American Way — an organ of the slobbering left — have done it for me.
Here’s a taste:
“Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.”
“Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism’s virtues, we offer it grudging acceptance, contemptuous tolerance, but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental flaw. We conclude instead that its ends are worthy of any sacrifice – including our freedom.”
“[W]e no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.”
“I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country’s founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document…1937…marks the triumph of our own socialist revolution…Politically, the belief in human perfectibility is another way of asserting that differences between the few and the many can, over time, be erased. That creed is a critical philosophical proposition underlying the New Deal. What is extraordinary is the way that thesis infiltrated and effected American constitutionalism over the next three-quarters of a century. Its effect was not simply to repudiate, both philosophically and in legal doctrine, the framers’ conception of humanity, but to cut away the very ground on which the Constitution rests… In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned…Protection of property was a major casualty of the Revolution of 1937…Rights were reordered and property acquired a second class status…It thus became government’s job not to protect property but, rather, to regulate and redistribute it. And, the epic proportions of the disaster which has befallen millions of people during the ensuing decades has not altered our fervent commitment to statism.”
If you can’t summon the will to defend such a woman, then for God’s sake shut up about it and stop damning her with faint praise.
Frankly, I can’t see why the Republicrats don’t force the Demopubs to have a REAL filibuster. I would love to se Demos talking all night on C-Span with Repubs on CNN and Fox explaining that the other party is refusing a straight up-or-down vote on the President’s appointments. AND, explain that the last time Demos were filibustering was in the 60’s to block civil rights legislation.
Thanks ER for the quotations.
What a remarkable person Justice Janice Rogers Brown!
And thanks also to President Bush for nominating her.