Thoughts On The Nuclear Option

Ken AshfordCongress, Supreme CourtLeave a Comment

I have no particular warm spot in my heart for the filibuster.  I don’t particularly loathe it either.  I just view it as one of many silly and arcane congressional rules that has been around for decades, like the entire committee process which can effectively kill bills from even being considered.  If I could make the rules for Congress, I would take power away from committees, and remove some partisanship by requiring that every bill be submitted “blindly” (i.e. no author or party affiliation tied to any piece of legislation).

Nor does by agnostic view of the filibuster change when it comes to judicial nominations (as opposed to legislation).  It is what it is.

My problem with the Repub’s nuclear option to get rid of the filibuster (for judicial nominations only) is that it involves cheating.  There’s no dispute that the Senate needs 67 votes in order to change an existing procedural rule, which the filibuster is.  But Repubs don’t have that 67%.  So we have the “nuclear option”, which in essence allows the Senate to change the rule with only a majority (50 plus Cheney). 

How can they hope to do this?  Only one way.  By taking the position that the filibuster is UNCONSTITUTIONAL, because (in essence, winnowing out all kinds of moronic legislative slang) you can change a “rule” if a majority of Senators agree that the “rule” is unconstitutional.  And since they are trying to preserve the filibuster when used for, say, legislation, the Repubs must take the position that the filibuster is UNCONSTITUTIONAL ONLY WHEN APPLIED TO JUDICIAL NOMINEES.

This is clearly an untenable position.  There are only two clauses of the Constitution that have major bearing on the present issue.  I’ll examine them separately, as well as the interplay between the two.

Article One, Section 5, Clause 3 states that “Each House may determine the Rules of its Proceedings…”.  Now, occasionally, the Constitution might compel a rule—for example, the Constitution requires that each House keep “a journal of its proceedings”.  But in the absence of a specific Constitutional requirement, each House may determine its own internal rules of procedure—that’s clear as crystal.  This means that if the Senate Rules require that its members cast their votes by dropping their pants and farting once for “Yay” and twice for “Nay”, that’s fine as far as the Constitution is concerned. 

The filibuster, which is only slightly less stupid than my example above, is one such rule that the Senate has established for itself.  It is neither constitutionally compelled, nor constitutionally forbidden.  Like vote-farting, it is constitutionally permissable

Now, we turn to the other (arguably) relevant constitutional clause in the controversy.

Article Two, Section 2, Clause 2 says that the President “by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court, and all other Officers of the United States . . .”.  This is relevant to the nomination of appeals and district court judges as well—i.e., the current controversy. 

The Constitution does not define the form in which the “advice and consent” must be rendered—it certainly does not MANDATE an up-or-down vote, as some Repubs argue.  The Advice and Consent Clause merely gives the Senate a power, but is silent on the procedure to carry out that power.

Logically, therefore, the MECHANICS in which the “advice and consent” is given is left to the Senate.  Which means, we are thrown back to Article One, Section 5, Clause 3—the Senate gets to make up its own rules about how that advice and consent is given.

Therefore, nothing is unconstitutional about the filibuster, and nothing unconstitutional about the filibuster-as-applied-to-judicial-nominations.  And the dirty joke is that everyone, including Frist I’m sure, knows this.

So . . . get rid of the filibuster?  Sure, count me in.  But don’t break your own rules of procedure and torture the Constitution in order to do it.  As Josh Marshall write:

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

UPDATE:  Josh Marshall makes an additional interesting observation:

Remember that this entire political uproar is supposedly about originalism, the need for judges who will interpret the law and the constitution not according to our personal wishes or the political needs of the moment, but according to its original and long-settled meaning. That is, we’re told, their aim. And yet to accomplish this they are quite happy to use a demonstrably bogus interpretation of the constitution to overturn two centuries of settled understanding of what the document means and requires.

Their very victory, should it come to that, is their badge of hypocrisy. Their arguments are all at war with themselves. But they don’t care.