an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"Constitutional hardball," "showdowns," and "crises"
Mark Tushnet has coined the term "constitutional hardball" and Adrian Vermeule and Eric Posner "constitutional showdowns" to refer to certain sorts of acriminious controversies over the extent of institutional power under the Constitution. (Jack and I have written about "constitutional crises," but we agree that not every episode of "hardball" or "showdown" counts as a full-scale "constitutional crisis," even if we argue that it is not very helpful to refer to, say, secession in 1860 as merely an episode of "hardball" or "showdown.")
So, whether or not the egregious use of the filibuster in the egregious Senate constitutes a "constitutional crisis," surely it exemplifies a "hardball" or "showdown" inasmuch as Republicans are determined to prevent the Administration from registering anything that might be viewed by the American public as an "accomplishemnt." They are, I think, behaving perfectly "rationally," given their view of how to succeed in the 2010 and 2012 elections. But it takes two to pay "hardball" or engage in a "showdown," and it's totally unclear that either Senate Democrats or the President has the willingness to do so (which means, in effect, that mad-dog Republicans prevail).
The two most obvious counterattacks are a) recess appointments, which the Constitution explicitly authorizes (the fact that its merits may be highly debatable is beside the point); and b) a full-scale attack on the filibuster. The first is the decision of the President. He's done a bit, but he should be far more aggressive, simply announcing that he will offer a recess appointment to anyone for whom the Senate refuses to vote within a month after being cleared by the relevant committee. No holds or filibusters will be allowed to prevail, period. The second is the choice of the Vice President, though it would be interesting indeed if Obama "ordered" Biden to rule that the Senate is not a continuing body and therefore allow the filibuster to be eliminted or, at least, to be significantly modified in the direction of majority rule.
My own view is that the inability of the Senate to respond to the challenges posed by climate change may well count as a "crisis." All of us may pay an extremely steep price for the awfulness of the Senate. A fine piece by E. J. Dionne, tellingly titled "In American politics, stupidity is the name of the game," concludes, "[W]e need to reform a Senate that has become an embarrassment to our democratic claims." Reforming the filibuster would be only a start, however necessary. But it surely wouldn't be sufficient. Posted
by Sandy Levinson [link]
The Dems and their media spokesmen like Dionne do not in any way share your constitutional concerns. Their current transient support for filibuster "reform" is a function of their calculation that the Dems will be left with a narrow majority in the Senate. I assure you that this solicitude for reform will vanish the instant the GOP were to reach 51 seats in the Senate.
Rep. Weiner was out there upset at the House blocking funding for some 9/11 related matter that a majority of the House supported, but for some reason a supermajority was needed.
I got an email from my senator's (apparently, the most good looking one, according to some survey)campaign office upset about it. I emailed back telling them to worry about their own side of the street.
The problem is waiting until January, since it will then be obvious which party will benefit. But if Biden announces tomorrow that he will rule (in effect) against the filibuster, regardless of which party is in control, then that will change the perception of people like Mr. DePalma and other cynics (who have reason, of course, for their cynicism). I read the article that Mark Field helpfully hyperlinked, and all I can say is that the aged denizens who believe that everything is just fine and that the answer is simply getting along with one another are simply delusional. What is extraordinary is that Diane Feinstein seems supportive of a rule that clearly cuts against California. Californians should be up in arms against this (and, who knows, some might take this quite literally.