Balkinization  

Thursday, May 08, 2008

When to confirm Supreme Court nominees

Andrew Koppelman

In the discussion of Senator McCain’s recent speech on judicial nominees, one passage has gotten too little attention: his claim (in the course of attacking Barack Obama for voting against the Roberts and Alito nominations) that the decision of whom to place on the Supreme Court “under our Constitution . . . is the president’s call to make,” and that nominees should be confirmed if they are “qualified.” This reading of the Constitution is widely shared. It is also indefensible.

Article II, section 2 of the Constitution provides that the President “by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.” It says nothing about the criteria by which Senators are to use the discretion thus given to them. In this it is structurally identical to the provision in Article II, section 3 providing that the President “shall . . . recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” The President can recommend legislation to Congress. Congress can then pass it, or not. When Congress considers a proposal by the President, it has absolute discretion. The question a Member of Congress ought to consider in such a case is whether the legislation would be good for the country. It has not yet occurred to any President to claim that his proposals ought to be enacted because they are free of typographical errors.

Of course, the fact that a bill is full of such errors is a good reason not to enact it. And if the president does nominate someone to the Court who is so dim that they are likely to be intellectually overwhelmed by the work – I’m sure you can think of a recent example - then the Senate ought to reject the nominee. But once this hurdle is passed, the question for the Senate should be whether the confirmation of the nominee will be good for the country. (This idea isn’t original with me. See Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 YALE L.J. 657, 657 (1969).)

Jack Balkin is right that what McCain is up to is just the familiar game of partisan entrenchment. McCain’s dubious constitutional theory is, as best I can tell, an artifact created by Republican Presidents during Democratic control of the Senate, in an attempt to stigmatize their political opponents’ responsible exercise of their constitutional checking function.

The sad and puzzling thing about the Democrats, during the Roberts and Alito confirmation hearings, is their inability to articulate what is at stake. For the most part, they accepted the bogus constitutional theory articulated by Senator McCain, and then, disgracefully, attempted to trash the characters of the nominees. John Roberts and Samuel Alito are decent, smart men. That’s not what was really at stake. What was at stake is whether the effort to constitutionalize the Republican party’s dubious ideals ought to continue.

Comments:

This is one more manifestation of the conservative Republican "unitary executive" movement.

They want the king, oops, sorry, President, to be the ultimate decision-maker on all things governmental... just so long as it's a Republican president.

As I recall, the Republicans in the Senate held up something like 200 Clinton nominations because they were determined not to seat his nominees. Didn't hear then any of the arguments for executive primacy being made now.

Hey, if it's a valid Constitutional mandate, it ought to be so in all cases. Because it isn't, logic would tell us it's Republican BS.
 

Voting for qualified judicial nominees is a custom which is not required by the Constitution, but it is a custom that long predates the recent judicial skirmishes. It only became an issue after the slander of the eminently qualified Robert Bork.
 

This comment has been removed by the author.
 

Can a nominee be directly questioned about their views on issues? Like, the question of whether Congress can prohibit cloning, genetic engineering, and same-sex conception might very well wind up before the Supreme Court. They might be the ones that decide if people have a right to create people using modified genomes, or if a state like Missouri is allowed to prohibit implantation to embryos not created by the sperm of a man and the egg of a woman.
Personally, I'm voting for President based on this question, which is the most pressing issue faced by mankind at the present moment. And I mean "present moment" - this can't be put off for ten years away, this is something to ask right now. I want assurances that the president understands the issue and will not allow anyone anywhere in this world to create a person that is not the union of a man and a woman's actual gametes. And that means they have to promise to appoint judges that also understand the issue, because it would be useless to elect a president based on a position if the court winds up being the decider of that issue. Therefore, we should be able to get assurances from the President that they would use litmus tests on that (or any issue) issue, and rule out judges that didn't pass by assuring the president that they don't consider creating people using genetic engineering to be a right, and they don't consider conceiving children with a someone of the same sex to be a right.
 

Can a nominee be directly questioned about their views on issues?

Absolutely. Now, can a nominee give a straight answer? That's a very different question, indeed. ;)
 

"The sad and puzzling thing about the Democrats, during the Roberts and Alito confirmation hearings, is their inability to articulate what is at stake."

Actually, especially as to Alito (given who he replaced and other factors, Roberts got many D votes), some senators did voice concern on Alito's views, especially given he replaced O'Connor.

But, except for what seems more extreme (a Bork), there still is a bias against substantive opposition. The President, so it is said, has some "right" to pick who he wants. We saw this with many of his executive picks.

Thus, a possible Cabinet member is voted down for some nannygate problem, but not when they enabled torture. Various senators are "concerned" about some such matters, but not enough apparently.

They also don't do enough of a job to help inform the public, who honestly are often not thinking about confirmations, except for interest groups. Reminding people, e.g., that presidents appoint judges etc. at election time will help. Even those that seem like "good people" might not be the choice for you.

It really is not "puzzling" btw. The shallow nature of politics has been dealt with ad nauseam. This is just one more aspect of it. "Sad" yes.
 

Although the problem of the Senate rubber-stamping presidential nominations is a serious one now, I say with complete confidence that it will fade away completely in academic circles if we ever have a Democratic president and a Republican Senate, and be replaced by the serious problem of partisan opposition to the popularly elected president.
 

Voting for qualified judicial nominees is a custom which is not required by the Constitution, but it is a custom that long predates the recent judicial skirmishes. It only became an issue after the slander of the eminently qualified Robert Bork.

1. "Qualification" includes ideology. I am sure, for instance, that conservatives would oppose the nomination of an eminent, experienced, accomplished Communist to the bench.

2. Bork was not slandered. He went on to write a bunch of books that proved his critics right-- that he was a reactionary extremist with the intellect of Foghorn Leghorn.
 

dilan:

1. I think that we all can agree that the qualifications of a judge should include a basic belief in our system of government and the rule of law.

2. Offering a slander of Bork's intellect to argue that Bork was not slandered is not a particularly effective tactic.

Whether you agree with his positions or not, Bork was one of the foremost legal thinkers in the bench and was largely responsible for modern anti-trust theory.

Most of the slanders hurled at Bork during the confirmation hearings did not challenge his intellect. Kennedy provided the most repeated slander:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the government ...

After the fact, even the Dems realized they had gone way too far and have not descended that far into the gutter again.
 

The President can recommend legislation to Congress. Congress can then pass it, or not. When Congress considers a proposal by the President, it has absolute discretion.

This analogy fails because Congress has the right to initiate legislation and, indeed, is expected to have primacy in initiating legislation. The President has the initiative in appointing federal judges, and sooner or later everyone knows that the judge chosen will be acceptable to the President.
 

I think that we all can agree that the qualifications of a judge should include a basic belief in our system of government and the rule of law.

Not when you get into particulars, Bart. You see, I don't think conservative jurisprudence accepts key principles of our system. And a lot of liberals agree with me.

. Offering a slander of Bork's intellect to argue that Bork was not slandered is not a particularly effective tactic. Whether you agree with his positions or not, Bork was one of the foremost legal thinkers in the bench and was largely responsible for modern anti-trust theory.

Bart, as it happens, I've read quite a few Bork opinions, and several of his law review articles, as well as "The Tempting of America", "Slouching Towards Gomorrah", and parts of "The Antitrust Paradox".

He was a lousy scholar. He wrote one of the worst law review articles I have ever read, attempting to apply Herb Wechsler's theories of constitutional interpretation to the First Amendment and making a hash of the whole thing.

The Antitrust Paradox is good an influential; you should know, however, that his scholarship was hardly unique and that the change in antitrust law would have probably happened with or without Bork.

As a judge, he was just OK. He wrote a nice opinion discussing evolutions in constitutional meaning in the context of libel law and wiretapping. On the other hand, he issued an opinion in Tel-Oren v. Libyan Arab Republic that got the entire Alien Tort Statute wrong (and which was rejected by every other circuit court judge PLUS the Supreme Court in the Alvarez-Machain case).

But you will notice what I said-- that he WENT ON to write books that showed he had the intellect of Foghorn Leghorn. "The Tempting of America" and "Slouching Towards Gomorrah" are not jurisprudential books. They are screeds. They contain a bunch of points that might as well have been uttered by Sean Hannity or some similar person of no intellectual depth.

In other words, he proved himself to be an old right wing crank. Thank heavens for the Senate-- we kept this jerk off the Supreme Court, where he could have done real damage.
 

Baghdad, as someone who has repeatedly called Wright a racist and anti-American, you're not really in a position to be whining about slander.
 

Bart bullshits --

"Voting for qualified judicial nominees is a custom which is not required by the Constitution, but it is a custom that long predates the recent judicial skirmishes. It only became an issue after the slander of the eminently qualified Robert Bork.

"# posted by Bart DePalma"

The "eminently qualfied" Robert Bork campaigned for an amendment to the Constitution which would authorize Congress to overturn SC decisions.

Apparently the "eminently qualified" "constitutional law professor" Robert Bork wasn't paying attention at the time, becasue during that campain, the Congress overturned a line of SC cases, initiated by Rehnquist, that had essentially ignored the text of the law in order to impose Rehnquist's preferred writing of the statute.

See Grove Hall and its progeny, and the "Civil Rights Resotration Act of 1985".

Oops -- right: Bart is opposed to civil rights laws that protect others against such as his sdociopathic predations based upon such relevant terrorist characteristics as race.
 

Bart badinage --

"1. I think that we all can agree that the qualifications of a judge should include a basic belief in our system of government and the rule of law."

That would disqualify Scalia and Thomas. And Alito.

And Roberts.

"2. Offering a slander of Bork's intellect to argue that Bork was not slandered is not a particularly effective tactic."

If Bork were not a reactionary extremist with a low IQ, then saying that of him would be a slander. That he is a reactionary with a low IQ is a statement of fact, and that, being true, is an absolute defense against a charge of slander.

So your charge of slander is simply a dishonest effort to distract from the truth.

(Not-so-by-the-way: slander is verbal. When written it is LIBEL. NEITHER of which occurs in this instance.)

"Whether you agree with his positions or not, Bork was one of the foremost legal thinkers in the bench and was largely responsible for modern anti-trust theory."

One of the foremost thinkers on the bench when he was the only one on the particular bench.

He is the judge who wrote the out-of-whole-cloth decision overturning the Fiarness Doctirne.

And see above re. his campaign for an amendment that has never been needed.

"Most of the slanders hurled at Bork during the confirmation hearings did not challenge his intellect."

That's because there was no intellect present to be challenged. Your argument is not a defense of Bork but rather an argument against efficincy.

"Kennedy provided the most repeated slander:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the government ..."

No, Kennedy had it right. Your problem is that he was riught about a fact you woant to keep as a hidden agenda.

"After the fact, even the Dems realized they had gone way too far and have not descended that far into the gutter again."

Right: even Republicans in the Senate have recently taken to calling Bushit a law-breaker. See Spector on Bushit's lawlessness vis-avis warrentless wiretapping, which was found by a majority of a bipartisan judiciary committee to be an impeachable offense when Slick "When the President does it it isn't illegal" Nixon did it.
 

Baghdad, as someone who has repeatedly called Wright a racist and anti-American, you're not really in a position to be whining about slander.

# posted by Bartbuster

He's whining about someone's perceived infringement of his monopoly.
 

I don't believe anybody who believes part of the Constitution is nothing more than an "inkblot" belongs on the Supreme court.

But I do believe that a President's nominations, all of them, are entitled to up/down floor votes. The power to advise and consent belongs to the Senate as a whole, not just the leadership and their carefully crafted committees.

If the Senate as a whole rejects a nominee, that's one thing. For a handful of Senators to deny the rest a chance to exercise their authority in the matter is quite another.
 

Brett --

"I don't believe anybody who believes part of the Constitution is nothing more than an "inkblot" belongs on the Supreme court."

I think that is an oversimplification -- and that we do have some over-simplifiers on the SC. Worse, at least one who is wholy wrong-headed:

There were two basic views concerning the Constitution during the ratifcation battle. One for the Constitution and ratification, and one against the Constitution and ratification.

The latter view, the anti-Federalist, obviously lost. But Federal Society/"state's rights" member Thomas chooses to be the first SC member to interpret the Constitution through the views of those who opposed the Constitution, and opposed its ratification, and who lost the argument. Unlike The Federalist, which is marginally relevant, the anti-Federalist views have no weight outside history, and, like The Federalist, have no legal authority.

"But I do believe that a President's nominations, all of them, are entitled to up/down floor votes."

You believe in power over politics, bullying over discussion and negotiation.

Congress is to be the most democratic of the three branches. Democracy is compromise. Compromise is horsetrading.

I don't believe any party, or any other branch, has the authority to dictate to the Congress that it must roll over and play dead whenever the Executive throws a tantrum in effort to impose his dictate.

Congress has its own procedues, independent of the Executive. The Senate can properly advise the president: "We will not accept nominees A, C, and F, but we wholeheartedly agree that candidates B, D, and E, should be approved. We believe that your second-option candidates G, H, and I are acceptable substitutes for A, C, and F.

"On other business before the Seante: you want us to include in the pro-torture bill that you are supreme dictator of the universe, thus should get your way in everything, no questions asked, because you are wholly above the Constitution and laws. We view it differently: so let's negotiate you down from your petulant high-horse, and modify your deranged bigot's zeal for appointing extremist reactionary religiozealots to the SC."

In short: the Senate need not agree to the might-makes-right effort to stealthily install the corrupt, incompetent, and flatly anti-American by unquestioningly accpting a "package deal"/dictate to have an "up/down" vote. Reality is nuance, dipshit Torturer-in-Chief Bushit notwithstanding.

"The power to advise and consent belongs to the Senate as a whole, not just the leadership and their carefully crafted committees."

The Senate, as does the House, has the authority to be efficient by establishing committees for specifc purposes; it is efficient to do so, and makes possible working on more than one issue simultaneously. A committee is given the authority to wihhold issues from the full Senate, based upon majority vote of the Committee. A committee does not have the authority to enact legislation all by itself.

Democrac is messy. You demand an anti-democratic efficiency when it would serve your ends. If, on the other hand, you didn't like the contents of the package, you'd be opposed to up/down vote -- which is a "duty" the Senate does not have.

"If the Senate as a whole rejects a nominee, that's one thing."

That isn't exactly an up/down vote, now, is it?

"For a handful of Senators to deny the rest a chance to exercise their authority in the matter is quite another."

That "handful" of Senators -- a committee -- are given the authority by the full Senate to exercise the authority delegated to it.

Ottherwise, in the full Seante, there is a Democratic leadership becaue it is necessary to counter the Republican leaderhsip.

Simply put, and in sum: the president doesn't have authority to dictate the way things must be done in the Congress, or get his way simply by stamping his feet, whining, and threatening to go off the wagon.
 

Re Bork, my impression is that antitrust law enforcement, both DOJ and private litigation, has for all practical purposes disappeared.
 

"But I do believe that a President's nominations, all of them, are entitled to up/down floor votes."

You believe in power over politics, bullying over discussion and negotiation.

Congress is to be the most democratic of the three branches. Democracy is compromise. Compromise is horsetrading.

I don't believe any party, or any other branch, has the authority to dictate to the Congress that it must roll over and play dead whenever the Executive throws a tantrum in effort to impose his dictate."


Voting down a nominee would constitute "rolling over and playing dead"? JN, my point is that the Senate has the right to decide whether a nominee is approved or rejected. When a minority of Senators, specially privileged by being appointed to a comittee, deny the majority of Senators the chance to make that decision themselves, it's not the President who's dictating that the Senate roll over and play dead.

What a warped view of things it is, to think that letting Senators vote on a nominee a majority of them want confirmed is an attack on the Senate!
 

Brett --

"But I do believe that a President's nominations, all of them, are entitled to up/down floor votes."

You believe in power over politics, bullying over discussion and negotiation.

Congress is to be the most democratic of the three branches. Democracy is compromise. Compromise is horsetrading.

I don't believe any party, or any other branch, has the authority to dictate to the Congress that it must roll over and play dead whenever the Executive throws a tantrum in effort to impose his dictate.


"Voting down a nominee would constitute "rolling over and playing dead"?"

You're being dishonest. Voting UP one of Bushit's all-or-none package-deal demands would be rolling over and playing dead.

The Senate, by contrast, has the authority to vote differently than a Bushitter demands they must, including one-by-one of those in the package.

Or to say: no deal, as per von Spakowski.

"JN, my point is that the Senate has the right to decide whether a nominee is approved or rejected."

And they have the "right" -- the authority -- to do that differently than petulant Signing-Statement Torturer-in-Chief Bushit demands.

"When a minority of Senators, specially privileged by being appointed to a comittee, deny the majority of Senators the chance to make that decision themselves, it's not the President who's dictating that the Senate roll over and play dead."

Correct: in that instance it is the Republicans controlling Congress, and thus the committees, and thus refusing to allow Clinton's nominees out of committee.

That is what you mean, isn't it?

Or do you mean the Republican-controlled Congress' demand for an up-or-down vote, or they would invoke the "Nuclear Option" against any it's-never-been-done filibuster by the Democrats who naw, being in the minority, constantly stonewall and block and -- yes -- filibuster?

"What a warped view of things it is, to think that letting Senators vote on a nominee a majority of them want confirmed is an attack on the Senate!"

What a warped view one derives from ignorning the facts which are contrary to and disproving of your view.
 

JN, do you really have THAT MUCH difficulty comprehending the difference between demanding a vote ON nominees, and a vote FOR nominees? The Senate is perfectly entitled to vote down any or all of Bush's nominations. I'm only asserting that the Senate as a whole is the body entitled to do that, not some select group of Senators chosen by the leadership.

The Senate has accumulated a large number of rules designed to transfer power from the average Senator to the leadership and their cronies, rules which are, for institutional reasons, (Their very existence, to be specific!) are very difficult to abolish.

In the present instance, the leadership are using their grip on the rules to prevent nominees who it has been conceded have majority support among Senators from being brought to a vote they'd win. Suggesting that this is bad isn't an attack on the Senate, defending it is.
 

Brett --

"JN, do you really have THAT MUCH difficulty comprehending the difference between demanding a vote ON nominees, and a vote FOR nominees? The Senate is perfectly entitled to vote down any or all of Bush's nominations. I'm only asserting that the Senate as a whole is the body entitled to do that, not some select group of Senators chosen by the leadership."

I don't recall you expressing that view when the REPUBLICANS had control of the Seante, and did exactly the same thing -- and worse -- with Clinton's nominees.

"The Senate has accumulated a large number of rules designed to transfer power from the average Senator to the leadership and their cronies, rules which are, for institutional reasons, (Their very existence, to be specific!) are very difficult to abolish."

The Seante has done so over many, many, many years. And those rules were approved by a majority of Senators. Like, you know, when the Republican majority changed the rules to suit their ambitions to brook no opposition of any kind in pushing through political-appointee Bushit's agenda.

And that included their "Nuclear Option" threat. Tyranny in the raw -- but you made no objection.

"In the present instance, the leadership are using their grip on the rules to prevent nominees who it has been conceded have majority support among Senators from being brought to a vote they'd win. Suggesting that this is bad isn't an attack on the Senate, defending it is. "

Yer right: that's only wrong when DEMOCRATS do it.
 

Brett:

JN, do you really have THAT MUCH difficulty comprehending the difference between demanding a vote ON nominees, and a vote FOR nominees? The Senate is perfectly entitled to vote down any or all of Bush's nominations. I'm only asserting that the Senate as a whole is the body entitled to do that, not some select group of Senators chosen by the leadership.

The Senate gets to set its own rules. One of them is the rule on closing debate. You may say that one deserves a vote, up or down, on any legislation (that, after all, is one of the responsibiltities of the Senate), but in fact they don't have to do that, and have not done so in many an instance. Many of these are due to the procedural rules for closing debate (i.e., they were filibustered). No one claims that the filibuster is unconstitutional. Neither is any failure to vote on a nomination. You may say that it is a "good idea" to give every nomination an "up-or-down" vote. Others may say that it is likewise a "good idea" to give an "up-or-down" vote to legislation. In neither case is it required, though.

If you don't like the rules ... run for the U.S. Senate, and you can suggest (and vote for) new ones.

Cheers,
 

No one claims that the filibuster is unconstitutional.

I do. IMHO, it's inconsistent with the principle of majority rule, which is fundamental to republican government.

But since the practice dates back to the very first Senate rules, it's pretty hard to make any originalist case against it.
 

The problem with the view that the filibuster is unconstitutional is that there are tons of other practices that we'd have to go through and decide whether they were too "filibuster-like" to fall within each house's right to control its rules.

For instance, what about courtesy holds? Unanimous consent requirements? Quorum requirements? The committee structure? Each of these things can be used by members of Congress to prevent an up or down vote by a majority of the body. They are all well established historically.

I don't think, in the end, that striking down these sorts of rules is consistent with each house being able to set its own rules. Many procedural rules can be used to impose effective supermajority requirements. The rule permitting unlimited debate (which the filibuster / cloture procedure arises out of) are just one such example.
 

I'll just add to Dilan's comments (which I agree with) that Constitutionalizing rules of procedure for the Senate is hard to do at the best of times. Aside from the problem of making the Constitution look like the tax code (or the CA Constitution), there's the problem of enforcement. After all, if the Senate honors a unanimous consent requirement, what can anybody do about it?

On the specific issue of appointments, it's possible to set a default deadline, say, 60 days to vote on a nominee or s/he's automatically confirmed. That may not be a great rule, for many reasons, and even if it is, we can hardly do the same for legislation.

I think the filibuster of nominees is wrong, but it's hard to fix.
 

Mark Field --

No one claims that the filibuster is unconstitutional.

"I do. IMHO, it's inconsistent with the principle of majority rule, which is fundamental to republican government."

So is the First Amendment: it protects unpopular -- minority -- speech from suppression by a/the (self-proclaimed) majority. Popular -- majority -- speech needing no protection.

"But since the practice dates back to the very first Senate rules, it's pretty hard to make any originalist case against it."

Pretty much, especially as the Congress was at tht time populated by Founders and Framers who knew their "original* intent" at first hand.
____

*I initially misspelled that "aboriginal" -- which I suppose isn't entirely incorrect.
 

dilan --

"I don't think, in the end, that striking down these sorts of rules is consistent with each house being able to set its own rules. Many procedural rules can be used to impose effective supermajority requirements. The rule permitting unlimited debate (which the filibuster / cloture procedure arises out of) are just one such example."

And the filibuster (the abuse might be not in its existence but in some of its uses) can be healthy be subjecting the ill-considered to further analysis and debate.

I guess I'm just one o' them old fashioned "aboriginalists" who leans toward the no-consensus-until-every-last-one-of-us/interest-can-be-included.
 

So is the First Amendment: it protects unpopular -- minority -- speech from suppression by a/the (self-proclaimed) majority. Popular -- majority -- speech needing no protection.

In my view, the 1A is actually a sine qua non of majority rule. The reason is that the principle of majority rule means (if it means anything at all) that today's minority must be able to become tomorrow's majority. The method for accomplishing that is speech.

The filibuster isn't "speech" in any substantive sense. Filibusters aren't making logical or factual arguments against a person or position, they're just engaging in a form of civil disobedience to block a vote.
 

Dilan, I think you'd be hard put to argue that quorum rules are unconstitutional, given that the Constitution actually dictates a quorum rule for the houses of Congress; Maybe the circumvention of that rule by means of voice votes to avoid the absence of a quorum being recorded is unconstitutional, but not requiring one.
 

Brett --

Dilan, I think you'd be hard put to argue that quorum rules are unconstitutional, given that the Constitution actually dictates a quorum rule for the houses of Congress; Maybe the circumvention of that rule by means of voice votes to avoid the absence of a quorum being recorded is unconstitutional, but not requiring one.

During the Constitutional Convention, the Pennsylvania delegation so objected to particular issues that they refused to show in order to prevent their being a quorum.

One delegation member was waylaid, physically brought to the Convention, and tied to a chair. Quorum.

In the Fall-Winter of 1972 there was effort by a House committee to investigate the Watergate break-in, but the Republican members consistently refused to show for those efforts. No quorum.

It's worth noting that the Republicans in the second instance emulated the Federalists in the first instance: they stringently obeyed the quorum rule.
 

Mark Field

So is the First Amendment: it protects unpopular -- minority -- speech from suppression by a/the (self-proclaimed) majority. Popular -- majority -- speech needing no protection.

"In my view, the 1A is actually a sine qua non of majority rule. The reason is that the principle of majority rule means (if it means anything at all) that today's minority must be able to become tomorrow's majority. The method for accomplishing that is speech."

I don't think that has much precdent. Certainly it allows the minority to be heard -- to have influence. But there are many minorities which have little or no chance of ever becoming a majoirty.

"The filibuster isn't "speech" in any substantive sense. Filibusters aren't making logical or factual arguments against a person or position, they're just engaging in a form of civil disobedience to block a vote."

Not in all cases. There are instances when a filibuster forced the "majority" to return to the table and make changes to accomodate the "minority" view, as result of which the filibuster ended.

And in some instances I think you'd approve: take the Patriot Act (I don't want it). Except for Republican fear-mongering, and a few envelopes of deadly anthrax powder, a filibuster might have slowed the process sufficiently that at least a few members might have had the time to actually read the bill.

Alas, that might have increased the number participating in a filibuster against it.
 

I don't think that has much precdent.

Here's Madison directly connecting freedom of speech and republican government, writing about the effect of the Sedition Act in his Report of 1800:

“Let it be recollected, lastly, that the right of electing the members of the government constitutes ... the essence of a free and responsible government. The value ... of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. ... Should there happen, then ... to be competitions between those who are and those who are not members of the government, what will be the situations of the competitors? Not equal; because the characters of the former will be [sheltered] by the “Sedition Act” from [criticisms] exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors whose [claims] they are not permitted ... equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it.”

Think about this in the context of the speech and debate clause as well. James Wilson explained the reason for this clause:

“In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may [give] offence.”

If you think about it, the same principle which applies to the legislators also applies equally to those of us who choose them.
 

Mark Field --

I don't think that has much prec[e]dent.

"Here's Madison directly connecting freedom of speech and republican government, writing about the effect of the Sedition Act in his Report of 1800:

"'Let it be recollected, lastly, that the right of electing the members of the government constitutes ... the essence of a free and responsible government. The value ... of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. ... Should there happen, then ... to be competitions between those who are and those who are not members of the government, what will be the situations of the competitors? Not equal; because the characters of the former will be [sheltered] by the “Sedition Act” from [criticisms] exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors whose [claims] they are not permitted ... equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it.'

"Think about this in the context of the speech and debate clause as well. James Wilson explained the reason for this clause:

'In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may [give] offence.'

"If you think about it, the same principle which applies to the legislators also applies equally to those of us who choose them."

We certainly agree in principle. The First Amendment is an equalivalent of the speech and debate clause, but applied to protect We the people from the gov't, the members of which have that right.

And I'm certainly not arguing that the First doesn't protect speech generally. I'm simply asserting that it exists to protect unpopular speech, because popular speech needs no protection. How often is the unpopular speech that of the majority? But how often is the minority voice squelched by this or that slef-proclaimed majority on the grounds of, say, national security, and aiding and abetting the terruurrists?

And how often, in healthy times, is one or another "majority" attempting to silence one or another (or more) minority voices?

Another way of putting it: I have far from sufficient number of fingers and toes to count the number of times one or another militarist, veteran or not, has claimed to be backed by an invidible "majority" in effort to silence speech uttered vy me simply because it disagreed with their's? And in those instances, it is usually begun with the assertion, "I fought to defend your rights," then continues on to attempting to tell me how I can and cannot use that right.

I began hearing that sort of bullying at latest in 1968. And it was encouraged by Nixon.
 

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