Balkinization: Richard Shelby, an extortionate bully

Comments:

Aren't you a little bit embarrassed about characterizing a problem with Senate rules that absolutely are not mandated by the Constitution, as a "constitutional" crisis? If there were ever an example that the real problem is one of political culture, this is it.

# posted by

Brett : 5:51 PM

If the senate rules interfere with the operation of a republican form of gov’t as provided for in our Constitution – as the filibuster and other rules seem to do - why not directly challenge them in court? Why doesn’t Obama have the Justice Dep’t take action?

# posted by

Anonymous : 6:46 PM

Let's all take a deep breath. Senators from time immemorial have placed holds on nominees. Sen. Obama placed holds on nominees. Your other favorite Senators, whoever they may be, probably have done so. In each instance it is indeed a bargaining tool -- extortion, if you will. In this case, Shelby, who is much more of a slime-ball than a thug, is doing it for the perfectly banal reason that the Washington state delegation persuaded the Administration not to take the low bid on a contract, so that the jobs would go to their state rather than to Shelby's state. This is how sausage is made in Washington, and it is more shocking that Shelby may actually be on the side of good government for once than that a Senator is hoding up nominations. The process of making sausage-laws in Washington is disgusting. Shelby is disgusting, for unrelated reasons. But to call it a constitutional crisis is nonsense. The real problem is that Obama is playing the game very badly. He cannot do with large majorities what Clinton and others could do with a minority. This is extremely frustrating for me and for many others, but it is hardly a crisis.

# posted by

John Tanner : 7:08 PM

In reverse order.

The Supreme Court has determined that "republican form of government" issues are political questions that they will not directly handle. Now and then, an opinion makes some noise about a matter touching upon it, but that old rule stills stands.

Why does it have to be "mandated" to be a problem? If medical regulations left a dangerous loophole to physician discretion, one that had the possibility of hurting the very well being of the medical community, would it also be an "embarrassment" to note it is a "medical regulation crisis?"

# posted by

Joe : 7:15 PM

Please link me to when Obama put a hold on (let's be generous) fifty nominations of all types because Bush didn't supply money to some pet Illinois cause. Judicial filibusters with other members joining in don't count here. Or, attempts that failed (Alito). Thanks.

"He cannot do with large majorities what Clinton and others could do with a minority."

Such as? There was an article in Slate about how Clinton was more successful with judges, but even there the article noted he had a slow start.

Cutting welfare or passing antiterrorist legislation on Clinton's part doesn't quite cut it. Clinton passed a tax plan with a majority.

Bush got things done with control of one or both branches of Congress and Republican filibustering. Some Blue Dog Dems helped on some issues, like tax breaks. Is Obama to blame for the purity of the Republican party?

Some clarification here will help me too. Thanks again.

# posted by

Joe : 7:24 PM

Joe, it may well be a "problem", but it's not a problem with the Constitution. It's a problem with the Senate rules, which are unambiguously NOT required by the Constitution.

If you can't correctly identify the nature of a problem, you're unlikely to be able to fix it. Diagnosis precedes cure.

Sandy doesn't like our Constitution, so he's forever claiming that it's "broken". Well, it's not. It's just not the Constitution he'd prefer.

If you're trying to drive nails with a Philips screwdriver, and the nails keep bending, you do NOT have a broken hammer in your hands. You might just manage to break the screwdriver, though, in your efforts to turn it into a hammer.

# posted by

Brett : 8:53 PM

Something outside the Constitution can nevertheless cause a Constitutional crisis. The Nullification Crisis is a perfect example. The Constitution indisputably allows Congress to impose tariffs, yet SC "nullified" the law -- neither in nor out of the Constitution; simply not mentioned -- and created the crisis.

# posted by

Mark Field : 9:03 PM

Joe -- Clinton accomplishments. where to begin? Family Medical Leave, S-CHIP, health insurance reform for tens of millions, minimum wage increase, assault weapons ban, brady bill, americorps, tax cuts and budget surpluses.... Not to mention NAFTA and GATT. Imperfect, certainly. some things I didn't support, yes. But not bad for someone who was pushing uphill all the way. Now if Clinton had enjoyed Obama's majorities.... Obama may hear the wake-up call, and I certainly hope he does, but for now, not so good.

# posted by

John Tanner : 9:21 PM

"hold - An informal practice by which a Senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. The Majority Leader need not follow the Senator's wishes, but is on notice that the opposing Senator may filibuster any motion to proceed to consider the measure." http://www.senate.gov/reference/glossary_term/hold.htm

The hold is not a Constitutional issue. It is not even a Senate rule. It is just an "informal practice". It does not require an amendment. It does not require a supermajority. It does not require a majority. It requires a decision by the Senate Majority Leader, some clown named Reid who, last time I looked, wasn't even a Republican.

We have just seen a sequence of disgusting legislation. Pork labeled as "stimulus", reform that doesn't reform anything, all passed with votes bought by disgraceful earmarks and corrupt deals. In the cesspool of Senate legislation, this additional turd hardly merits mention.

# posted by

HowardGilbert : 9:33 PM

Oh, yeah, Jackson: Among your accomplishments are at least TWO deliberate assaults on an explicit civil liberty. By that standard, you guys should be touting Bush for his accomplishments, shouldn't you? Attacking civil liberties, and all...

# posted by

Brett : 8:33 AM

Strange, I do not recall reading similar complaints when the Dems were holding up a dozen Bush nominees for months.

# posted by

Bart DePalma : 9:41 AM

Dems lost control in 1994.

NAFTA? Passed when Dems controlled and was a pro-corporate policy many liberals hated.

Family leave? Passed in 1993. Again, where is this "minority."

Health insurance. Of course, he failed his major effort here. Pending now. Children health benefits expanded last year.

The assault weapon ban occurred in 1994. Again, no "minority." Banning some guns cosmetically different from the ones legal is not really a great accomplishment. I'll take Ledbetter.

The tax bill, as noted, also wasn't when the Dems were in the minority. Meanwhile, Obama passed a stimulus bill. Dealt with an economic crisis/bailout. Others have listed other things past just in his first year.

Hey, good try though. Problem is, I lived thru the 1990s. Once Clinton lost Congress, his big thing was fighting with them and dealing along the edges. Oh he also was impeached.

And, again, the dynamics are different. Obama didn't cause the Republicans in the Senate to be so oppositional. Things worked differently there in the '90s.

# posted by

Joe : 10:05 AM

Howard, your distaste on policy grounds is noted, but one senator blocking 70 nominations which even members of opposition party as a whole don't find fault with is not exactly the same thing.

And, again, the fact something is not "compelled" doesn't erase the constitutional dimension.

Take segregation. Some areas were allowed a "local option" as to segregation. It was not compelled like in some states. It was a "voluntary" practice allowed under local "rules."

Apparently, it was not a "constitutional" issue because it was an act of discretion, one allowed by the Constitution, and affecting how the constitutional system is run.

Finally, even "dozens" don't match six dozen, nor was it just one senator. And, it wasn't just for pork, but concern with the individual nominees or the overall nomination system.

# posted by

Joe : 10:18 AM

revenons a ces moutons. The issue is whether Shelby has created a constitutinal crisis by putting a hold on a group of nominations, no? My point is that this has happened frequently -- routinely --in the past and is no crisis; and that Obama, who has holds and filibusters to his own credit, is doing a poor job managing the Senate, despite a huge majority.

He has done some things, although the Emergency Economic Stabilization Act of 2008 was passed under Bush, not Obama (Although he has continued to shower goodies on the banks. And he passed the stimulus bill although it was, in my view, an utter failure, missed opportunity, etc. And some other bills have sneaked through. But -- setting aside whether I favor (or you favor) the bills that the president is getting through congress, has any recent president done less with as large a majority in the Senate? That is the issue from a constitutional crisis perspective. I hope Obama gets his act together, and I think there's a pretty good chance that he will, and that he will learn how to deal more effectively with congress, get re-elected and carry Democratic majorities with him. He is not currently on that trajectory, however, and the Senate procedural rules (of which I am no fan, but which I recgnized Democrats have used to good effect and will again in the future want to use) are simply a long-standing part of the landscape with which he, like his predecessors, will have to learn to deal.

# posted by

John Tanner : 10:58 AM

No, what erases the "constitutional dimension" is that there's nothing about it demanded by the constitution. At some point, you have to stop blaming the Constitution for the actions of politicians, and start blaming the politicians. Or else you'll find that, after you manage to change the Constitution, nothing has changed.

As far as I can see, the only "constitutional" aspect of the problem is that the Constitution calls for a Senate.

Now, you COULD implement a constitutional patch on the problem, I suppose; I've proposed before that we amend the Constitution to give the Senate a fixed time in which to hold an up/down vote on any given nominee, with the nominee automatically taking office if the Senate fails to act on the nomination. Similar to the way that legislation becomes law if the President ignores it.

But it's a patch demanded, not by a real flaw in the Constitution, but by a serious flaw in our political culture. And that political culture would find another way to screw things up.

# posted by

Brett : 10:59 AM

"But -- setting aside whether I favor (or you favor) the bills that the president is getting through congress, has any recent president done less with as large a majority in the Senate? That is the issue from a constitutional crisis perspective."

No, I think the reason not much is getting done, despite the huge majority, is that the leadership doesn't want to do things that are popular. To the extent that members of the majority are reluctant to move measures that are unpopular with their constituents, that's democracy WORKING, not broken.

# posted by

Brett : 11:02 AM

Does our intrepid former backpacker evidence memory problems with this:

"Strange, I do not recall reading similar complaints when the Dems were holding up a dozen Bush nominees for months."

Is our yodeling tea bagger referring to this Blog or generally? Is he suggesting that Bush/Cheney minions (of which your yodeler was one pre-tea bagging) did not complain of such Dem holds? Alas, our yodeler needs reminding that the memory is the second thing to go. Once again, he's shooting blanks.

But rather than call Shelby a "thug," I'd just call him a Dick. (Here's a proposed song title for Shelby's holds: "Close the [Senate] Door, Richard.")

# posted by

Shag from Brookline : 11:03 AM

Joe:

Problem is, I lived thru the 1990s. Once Clinton lost Congress, his big thing was fighting with them and dealing along the edges. Oh he also was impeached.

Just wait. More Republics think Obama should be impeached than not. All it would take is an excuse and a majority (see, e.g., 1998).

Cheers,

# posted by

Arne Langsetmo : 12:10 PM

"The issue is whether Shelby has created a constitutional crisis by putting a hold on a group of nominations, no?"

Well, not exactly, but I appreciate the focus on the immediate issue, not some false comparison to Clinton. The "issue" is if Shelby is a blatant example of a general ongoing crisis. See SL's comments.

"nothing about it demanded by the constitution"

This is not what a "constitutional crisis" means. For instance, the 12A arose out of political events, but it also was a "constitutional" moment because the political events were influenced by constitutional practices.

"the Constitution calls for a Senate"

which is given certain discretion to allow even single senators to hold up things like this; that discretion, influenced by history, is in no way necessary for a "Senate" to exist.

Yes, to cite your equally dead horse, political reform is key here. But, this doesn't erase the constitutional dimensions, which sets some parameters to how that politics will work in practice.

# posted by

Joe : 1:38 PM

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# posted by

Joe : 1:42 PM

btw, in my previous statement, I said "which" ... I meant to say the Republicans don't have a general opposition to "who" the nominations in question are. I'm not necessarily saying (though it's possible) they support the hold.

After all, the minority leader by one account didn't want to comment on it, suggesting some embarrassment.

[my kingdom for an 'edit' key!]

Anyways, perhaps this is a small "c" discussion -- "Constitution" as in how the system is understood to work in practice, over time. Thus, certain "discretionary" rules become "constitutional norms" in practice.

# posted by

Joe : 1:47 PM

Shag:

As you well know, I am referring to the lack of similar protest here in general and by Jack in particular when the Dems were holding up an dozen Bush nominees for months.

It is similar to the utter silence here about the Obama continuation of nearly every Bush policy toward foreign enemy combatants, which when they were Bush policies were said to represent a frontal assault on the Constitution.

I am curious whether a certain former Balkinization blogger is now writing secret memos upholding Bush security policies at OLC. I do not read any posts demanding that Obama make his classified memos public.

I believe I noted several times prior to the election that I would continue to support the Bush policies if they became Obama policies, but the silence here after the Dems were in charge would be deafening. I do and it is.

# posted by

Bart DePalma : 2:40 PM

Yes, Scott, and we're all familiar with the heroic efforts of Democrats to end the war on Drugs. Aren't we?

# posted by

Brett : 2:49 PM

First thing the administration should do is award the FBI lab to a strongly blue state, say Maryland, then have Reid put the Senate in session 24/7 until all pending business is finished. Make the Senate vote for cloture on each and every nominee pending, even if that means everything else comes to a grinding halt and they are there at 3:00 AM on a Sunday to vote for the Ambassador to Ethiopia. Let C-SPAN and the rest of the media show these self-pompous buffoons for what they are.

# posted by

Unknown : 3:17 PM

Our intrepid former backpacker responds with this weak debater's trick:

"Shag:

As you well know, ...."

I was responding to our yodeler's text that he now explains with several paragraphs, as he makes an assumption that I well know what he meant, like I can read his mind. Wait a minute, it's coming through ... no, its just a tabula rasa.

# posted by

Shag from Brookline : 3:49 PM

Both Democrats and Republicans have been ripping off the taxpayers, since way before I was born. The thing that worried me about Obama right from the beginning was his warlike and hawkish attitudes. We need to stop giving money to the military, and Obama never talked about that. I invite you to my website devoted to raising awareness on this puritan attack on freedom: http://pltcldscsn.blogspot.com/

# posted by

David Scott : 3:52 PM

One of the more improbable improvements in US democracy was the move to directly elected Senators at the beginning of the last century. There were many currents involved in that Constitutional improvement -- but a little research suggested to me that a prerequisite for making that body somewhat more democratic was bringing its incumbents into public disrepute. So let's get on with it.

Of course Shelby is a stick-up artist and a terrorist. And B Nelsom and Lieberman are thugs. And the very name of Senator means corrupt, egotistical and rotten. Make 'em carry it.

# posted by

janinsanfran : 8:43 PM

"Bart" DePalma:

It is similar to the utter silence here about the Obama continuation of nearly every Bush policy toward foreign enemy combatants, which when they were Bush policies were said to represent a frontal assault on the Constitution.

What "utter silence"? Amongst other things, Greenwald hasn't let off a bit on his blog, and if the topic comes up here, those of us that thought it a travesty think it's still a travesty when Obama does it. And we say so whenever it comes up. I doubt you can find a single legitimate Obamanaut here that is now supporting any of Obama's policies that they opposed when Dubya did them.

Cheers,

# posted by

Arne Langsetmo : 9:50 PM

Again, I can't disagree with the substance, but it loses credibility when it seems invariably to come up primarily or exclusively on the Republican side. There needs to be a bipartisan commitment to adjust these rules which I think takes some recognition of shared enterprise and mutual respect. Unfortunately these seem to be lacking on both sides of the aisle.

# posted by

michael a. livingston : 10:02 PM

"One of the more improbable improvements in US democracy was the move to directly elected Senators at the beginning of the last century."

Of course, we don't want to improve democracy. We want to improve governance. Alas, direct election of Senators proved far more of an improvement in the former than the latter.

# posted by

Brett : 10:30 PM

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# posted by

PMS_CC : 9:52 AM

arne:

I was referring to the silence here among the left legal academia. Greenwald is not part of the legal profession any longer and never posted here.

Among left blogs in general, the subject almost never comes up anymore and when it does the volume of poster protests is far, far lower.

Among Dem politicians, the silence is deafening.

Why is this matter only a crisis when a Republican is in office? Could it be that the basis of nearly all of the protest from the Dems and the left was partisan animus and not any particular affection for the Constitution?

In telling contrast, I do not see the GOP or conservatives attacking these policies now that Obama is President.

# posted by

Bart DePalma : 10:02 AM

Among left blogs in general, the subject almost never comes up anymore and when it does the volume of poster protests is far, far lower.

Bart's signature move. The confident declaration on matters he pays next to no attention to.

I can say from experience the disappointment with Obama on the left is widespread. We're a mouthy bunch and not afraid to say so.

# posted by

mattski : 11:08 AM

I understand that you just wanted to get things moving. Sometimes immediate action necessitates a stronger move, but it's good to see people can still apologize in this day and age. Good thoughts..

~DREW
what is the bible?

# posted by

KB : 12:41 PM

President Obama should call Senator Shelby in and ask him to bring anything about those on his hold list that would scandalize the country. Then he should present Senator Shelby with a "reverse earmark" list of all the federal activities in Alabama, all the activities by Senator Shelby's biggest campaign supporters. Then the President should ask Senator Shelby which ones he would like to save and what he is willing to offer for that to happen. No need to stop at lifing the holds.

# posted by

Mike Zimmer : 2:27 PM

"Bart" DePalma:

I was referring to the silence here among the left legal academia....

No, you weren't:

["Bart"]: It is similar to the utter silence here ...

I'd note that the proprietors haven't been silent (even in the absence of Dubya's most strident critic here, Prof. Lederman).

Greenwald is not part of the legal profession any longer and never posted here.

How can you say that Greenwald is not part of the legal profession? It's true he hasn't posted here, but what's not true is your claim that purported leftists have been silent on Obama's policies.

Among Dem politicians, the silence is deafening.

You mean the same ones that were silent on Dubya's abuses (or even enabled them)?

Cheers,

# posted by

Arne Langsetmo : 6:29 PM

Arne:

Greenwald is a fulltime writer and has been for years. It does not appear that he is practicing law anymore and may not be maintaining his bar license.

Greenwald certainly does not represent the left legal academia as does this blog.

# posted by

Bart DePalma : 9:49 AM

"Bart" DePalma:

Greenwald is a fulltime writer and has been for years. It does not appear that he is practicing law anymore ...

I think you're wrong here. AFAIK, he's been active with some legal work.

... and may not be maintaining his bar license.

And you may be the King of Rome. Absent evidence of that, such a statement is just slinging feces.

But how you manage to keep your bar license, considering your many lies and misstatements of law (see, e.g., here) is beyond me.

Cheers,

# posted by

Arne Langsetmo : 1:11 PM

"Bart" DePalma:

Greenwald certainly does not represent the left legal academia as does this blog.

I gave (above) a counterexample to your claim that there is "utter silence" here. Your claim has been disproven (as is too often the case).

Cheers,

# posted by

Arne Langsetmo : 1:14 PM

# posted by

Unknown : 1:16 PM