Friday, May 13, 2005

Executive Calendar Filibusters Unconstitutional?

Andrew McCarthy is someone I have come to respect. Please read this article. I am persuaded and I also did not think these filibusters were unconstitutional, just a very bad way of running the Senate.


Geoffrey Shipsides said...

Have you considered the Nostalgia Option for Filibusters as I posted a while back?

Charles Iragui said...


I prefer to acknowledge that the filibuster is not about the senators' expansive right to speak. Filibusters are traditionally really about outrage having a powerful lever. Functionally, they are a supermajority requirement. As McCarthy argues persuasively in this article, a self-imposed supermajority requirement is fine for the Senate in its legislating power, but not fine as a limit on presidential perogatives.

I'd prefer the compromise which allowed debate on nominees to be cut off only after 100 hours. This would in practice scuttle many appointments, due to the value of Senate time, but would not ultimately frustrate constitutional presidential power.



Charles Iragui said...

Some thoughts:

His point that SOME kinds of rules MUST be unconstitutional cracks the notion I had: the Senate makes its rules. I think this is what he's demonstrated effectively. Less clear is whether THIS rule is unconstitutional. For instance, one compromise being suggested is to reform the rule so that debate on judicial nominees (appoinments in general?) cannot be cut off for at least 100 hours. This would have teeth because Senate time is precious and the president would have to make choices on whom to defend. Would this encroachment on presidential appointment authority be constitutional? Where is the line?

Constitutional jurisprudence does seem to assume a requirement fo reasonableness. One branch cannot hold the others hostage by attempting to de facto negate its power. I think here McCarthy was on firm ground. If the Senate made a rule that no consent would be given to appointments, period, would that rule be constitutional? If the Senate were to make a rule that its consent would be granted only with a promise from the appointee that he would obey the Senate, would that be constitutional? If the Senate required the President to make such an agreement, would that be constitutional?

If one therefore agrees with McCarthy's basic constitutional premise, that the branches must not negate each other's powers, the question presented is whether this rule does so. This is a factual question, that is, one for reasonable minds to determine.

Does unreasonable here mean "that which unreasonably reduces the president's inherent nominating power" or "that which unreasonably hinders the appointment of necessary government officials"? It would seem that here the relative power of the Senate might well be greater than in the normal course of appointments: the president nominates judges but does not supervise, direct or retain them at his pleasure. Perhaps the Senate is more equal here than normally would be the case.

But it would also seem that the Senate must not unreasonably meddle with the judicial power by setting up barriers that make judges beholden to the Senate. When Senators attempt to make appointees prejudge cases, I think they are beginning to act in an unconstitutional fashion, just as legislatures clearly do not have the power to instruct judges on how they must decide cases. This is one more reason why I favor textualism: keep the roles distinct. Judges maintain the propriety of the law, while legislators change it.

If the Senate, particularly in the case of judges, decides that 3/5 votes should be necessary for consent to be accorded to the president's nominees, I also do not see why this should be thought unconstitutionally unreasonable, in the schematic balancing of powers sense we've been discussing. In fact, on the face of it, pace Republicans, it seems prudent.

However, pace Democrats, there is even more certainly no constitutional REQUIREMENT to keep the filibuster option in place.

Prediction: the Republicans will force through a rule change with a modified filibuster that can be broken by a majority once the filibustering Senator has been able to speak for 100 hours.