Balkinization  

Tuesday, July 27, 2010

When might filibusters be justified?

Sandy Levinson

I argued in my previous post that Joe Biden should declare that the Senate is not a continuing body and,therefore, that it can modify its rules by a majority vote, without facing a filibuster. Does this necessarily mean that the filibuster should be abolished lock, stock, and barrel? I think this is quite literally debatable, and I see two circumstances where we might want to retain the filibuster, even if, for example, we might want to drop the number of votes required to break a filibuster from, say, 60 to 55. In any event, the two circumstances are:

1) lifetime appointments, which means, obviously the federal judiciary. I, of course, strongly favor eliminating life tenure, especially for Supreme Court justices. If they could serve only 18 years, with no reappointment, then perhaps they should not be subject to filibuster. But until that happy day, I see no principled objection to trying to derail someone whose constitutional views the objector finds genuinely offensive, whether from the right or the left. This is, incidentally, why Lindsay Graham was wrong to say that he was in effect obligated to vote for Elena Kagan because, after all, Barack Obama won the election. I obviously believe that Kagan deserves support and that the Republican opposition to her is spurious to the core, but if one really wants to roll back the New Deal, then it is completely rational to oppose Kagan. Similarly, although Miguel Estrada, whom I met a couple of times, may well be a fine (and most certainly a very bright) person, it is silly for Democrats to express remorse about defeating him in light of Graham's speech. I give him great credit for supporting Kagan, and I have no doubt that she's sincere in saying that he should have been confirmed. But if he had been confirmed, then I strongly suspect that today we'd have Justice Estrada instead of Justice Alito. (Perhaps that proves that we overestimate the signiicance of discrete individuals, for a strong president may usually be able to wear Senate down by nominating persons who are far more alike than different in ideology. That is the topic for another posting.)

Perhaps one should make the same kind of argument for the head of the Fed or the FBI, given that they serve longer terms and have immense power (indeed, as we saw in the winter of 2008, more effective power than the President, who chose to be a bystander as Bernanke and Paulson acted).

2) when, because of the indefensible way that voting is allocated in the Senate, the "majority" in fact represents less than a majority of the American public. As a matter of cold fact, this argument favors the Democrats, inasmuch as Republicans currently tend to benefit from the Senate's allocation of votes. Still, it seems fair to me to argue for a rule that allows debate to be ended only when a majority of senators representing a majority of the population vote to end it. On occasion, that would be 51 (or even 50 + the VP); on other occasions, one might in fact need quite a few more votes. But if the principal mantra behind the "anti-filibuster position" is "democracy" (which is true in my case), then it's difficult to defend a principle that allows a group of senators representing less than the majority to ram controversial legislation down the throats of the presumptive majority.

3) a third argument that is often made is that the filibuster is a useful measure of "intensity," since otherwise the votes of a marginally-supportive and an intensely-opposed senator are treated equally. In theory this is a good argument, but, alas, the principal example of the "intensity" argument is Southern racists who used the filibuster to stop substantial civil rights legislation until 1964. And, of course, in the old days, whether good or bad, intensity was measured by a willingness to stay up all night and make multi-hour speeches; it had not become the basically costless gesture that is now, with attendant problems of "moral hazard" when one in effect gets an important good for free.

As noted above, none of this suggests that Biden should turn his back on critics of the filibuster in his capacity as VP.

Comments:

1] On more why Sen. Graham was wrong (in part), see this essay.

The use of Estrada as a martyr is ironic for more than him being Kagan's seat buddy in 1L. Kagan was nominated to the appellate bench in '99 and never given a hearing by Senate Republicans. Republicans really have themselves to blame for her "lack of experience" (so called).

In fact, Estrada's had a seat to be nominated for in part because of that action along with another nominee not given a hearing, even though he was a former Rehnquist clerk, and got his support along with the likes of Robert Bork.

2] I think a supermajority rule for lifetime appointments might be valid, but it seems to me there is some pieces of legislation or other actions (such as as pointless war) that would be as important as appointing some district or even appellate judge.

3] Relatedly, temporary filibusters could be valid in various cases to avoid summary action or to emphasize the importance of a certain action. This is the alleged reason for the rule anyway -- not to simply block, but to "debate." When the Congress ran on the "what a majority of the majority of the Republican caucus" wanted rule, for instance, it might be useful.

Overall, I doubt if filibusters will end. The thing to hope for is some sort of middle path where they are defanged some. This includes them being used at the drop of a hat. Like drinking and other things, even temporary excess is okay if unpleasant, but at some point, it just gets offensive.
 

oh ... Sen. Graham tossed in that Goodwin Liu violated even his more limited rules of engagement.

Liu is a fine appellate nominee that has received support from many across the ideological spectrum. He also is involved (along with Prof. Balkin) in the American Constitution Society, and co-wrote a book found on its website.

If Liu can be targeted, and Kagan not given a hearing, the "victimization" of Estrada is that much more hypocritical.
 

Dorf's comments are interesting, but I think there is an additional factor involved in Sen. Graham's vote.

As I understand Senate rules, the nominee must receive at least one vote from the opposition party in order to send the nomination to the floor. What I say depends on my being right about the rule as to whether my theory below applies to the Kagan nomination.

What I think we're seeing recently is that the Republican Party is, on at least a few occasions, in the position of wanting to make a big public relations issue out of a bill or nominee, but doesn't actually want to be responsible for blocking it. The solution to this is that someone on their side gets appointed to break with the party line and provide the necessary vote. In this case it was Graham, in other cases Scott Brown or Snowe or Collins (Spector used to fill this role). This way the party can fire up the base, extort as much compromise as possible, and not actually obstruct the bill.

I do not think this applies in all cases. Some things the party simply won't agree to. But I do think it's an effective tactic for simultaneously bargaining and distinguishing between the parties on some issues.

In short, I think there are times when the "maverick" is actually acting as the leadership wants, not truly breaking ranks.
 

Do you have a link to that "rule," Mark? Goodwin Liu was voted out by a party line vote, for instance.
 

It is impossible for "a group of senators representing less than the majority to ram controversial legislation down the throats of the presumptive majority" because the legislation must also be approved by the House.
 

Sorry -- Synder was given a hearing, but not an "up or down" vote.
 

I don't think filibusters are ever justified, and I think the exceptions are arbitrary.

For example, what is so different about lifetime appointments versus 18 years? That seems pretty arbitrary. As it is, all the Justices in history (excluding those currently on the Court, because you don't know how long they'll serve), more than 55% served fewer than 18 years. Also, why is this any different than passage of "important" laws like the Civil Rights Act, the Social Security Act, etc., which will have much more enduring an effect on society than even a justice who serves 30 years.

With respect to the "when a majority represents a minority" comment, I think that is far less clear. Yes, Wyoming is egregious. But do you think Rhode Island, Montana, Vermont, North Dakota, Delaware, and Hawaii, each with two Democratic Senators are not? In fact, of the 20 senators from the 10 smallest states, 14 are Democrats (that's 70 %, more than the 59% of the whole Senate Democrats have).

Of course, I should mention that I am a diehard Democrat who hates the current Republicans, but I also hate the antidemocratic idea of the filibuster, and I think the notion that small-state bias disproportionately helps Republicans is a little unfair (for every California there's a Texas, every New York there's a Florida, every Pennsylvania there's an Ohio, and for every Wyoming there's a Rhode Island).
 

Brunonian makes an interesting point about the small states. Still, it is clear that the recent Republican "majority" of the Senate was composed of senators representing less than a majority of the population.

Mr. DePalma also makes an interesting point, which would be more persuasive if the House were less gerrymandered. But he's clearly correct in suggest that the Senate alone can't ram legislation through; there must be the support of the House, and the House is clearly more majoritarian than the Senate, even if we can debate the extent of the House's majoritarianism. Once Dennis Hastert adopted the "no vote without the support of the Republican caucus" principle, one could easily argue that he gave up any pretense of the House represetnging the "public in general" rather than the distinctly minority "base" of the Republican Party.

Incidentally, a gratituitous comment: Whatever one thinks of Mr. DePalma's arguments, I think that he (relatively) rarely resorts to personal abuse of those he disagrees with. I commend him for that.
 

Sandy:

I am unsure how the House can be more majoritarian. A party cannot long diverge its governance from the will of its constituents with a two year election cycle. If governing from the base is repellant to the middle, the middle will jump to the other party. This election looks to be a textbook example of that principle.
 

I have found the filibuster endearingly foolish, and currently regrettable for its dilution to a mere procedurality not requiring the oratory be performed by the actual senator in-person and non-stop. The bedraggled opponents filibustering Civil Rights legislation of various hues over two decades paid a personal price of humiliation for their speechifying, by their appearance after their long argumentation on the chamber floor, and by the non-sequiturs in the content of their speeches.

Nominee confirmations have emerged as an easy target for the modern, all-too-facile non-speechifying filibuster.

The 'inequities' in representativity in the senate are a similar delicate balance of pomp and genuine respect; so, here, too, I diverge from the author's longtime disapproval of the upper chamber's imbalances.

These features, the apportionality of senate seats, fooishness of the filibuster, are features, not bugs.

The histrionics about nominee Estrada appear to me priming for subsequent demands by Republicans that Democratic party senators in a future Republican presidency's term be categorically acquiescent about nominations. If governance fumbles very often because of impediments introduced by these frivolous rules in the senate, we are saved from worse outcomes, namely extremism of many genres.
 

Do you have a link to that "rule," Mark?

No. I thought I read it, but I could very well be wrong.
 

What Mark may be thinking of is this rule:

"Eight Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business."
 

Sandy says:

"Incidentally, a gratituitous comment: Whatever one thinks of Mr. DePalma's arguments, I think that he (relatively) rarely resorts to personal abuse of those he disagrees with. I commend him for that."

Perhaps Sandy may, in his own mind, be limiting this gratuitous observation to those who comment on this Blog regarding personal abuse. Perhaps Sandy excludes Pres. Obama whom our yodeler has subjected to personal abuse and vitriol obviously because he disagrees with OUR PRESIDENT. Perhaps Sandy has forgotten all of our yodeler's diatribe in connection with his proposed book on Obama. Sandy surely realizes that Pres. Obama is not going to respond to such diatribe. But what is the result if such diatribe is not challenged at this Blog? Maybe Sandy is intimidated by our yodeler.

By the way, perhaps Sandy has forgotten why Jack Balkin stopped commenting on his posts.
 

Incidentally, a gratituitous comment: Whatever one thinks of Mr. DePalma's arguments, I think that he (relatively) rarely resorts to personal abuse of those he disagrees with. I commend him for that.
# posted by Sandy Levinson : 5:50 PM


;;;chuckle;;;

Baghdad Bart regularly insults the intelligence of everyone who reads his bullshit.
 

As to John's post, the civil right's bill is but one thing. And, just how much "humiliation" did Thurmond et. al. get for doing it? In fact, many staid in the Senate long past 1964.

I question if there was some 'golden age' in the use of the filibuster, but point of fact, it doesn't exist any more if it once did. Along with modern partisan politics, the filibuster is not being used sanely. The theoretical value of something used insanely is mostly a moot point.

As to "extremism," are we saying with all the checks in place along with the balance of power in the Democratic Party being conservative on various issues, no filibuster will result in "extremism"?

The system has been skewered by one tool in the tool kit. When that happens, it is a bug.
 

ok gang. it's time to get over it. sandy is clearly referring to the fact that mr. depalma, whom i am no fan of, tends not to take personal potshots at other commenters here at balkinization. this was not an invitation for those of us who disagree with mr. depalma to come out with gratuitous cheap shots once again. once in a while, it would help if you would refrain. shag, if you want to know why jack doesn't allow comments on his posts anymore, just look at bartbuster and your last two comments.
 

phg, I'm already over it. Go fuck yourself.
 

If you're going to allow yourself to be used by a propaganda spewing scumbag, you get what you deserve.
 

For all the people clamoring for a return to 'real' filibusters: as I understand it reverting to the old system would require a rule change, and therefore is as difficult as changing the filibuster itself.
 

It seems to me that many of the senate rules were written for a bygone era before the advent of modern communications when the senate might stand adjourned for lengthy periods and when there was much less real business to be got through.

The House of Commons too had a tradition of unlimited debate, and because members were expected also to have other occupations, it started its day in the afternoon and went on - often all through the night. It was not uncommon then for a bill to be "talked out".

It seems to me that rules have to adapt to meet the volume of work to be done and that some measure to limit debate is inevitable.

At present in the House of Commmons,the rule is that the motion passes by a simple majority but 100 members (out of 600+) must be present and voting in favour AND (important safeguard) the Speaker may refuse to entertain the motion if he considers that more debate is needed or that the rights of the minority to air their views would be infringed.

Perhaps some rule setting a high bar for a first motion to end debate and a lower bar on a second motion would protect the right of the minority to make their point but enable the Senate to carry on its business.

The role of an opposition is to oppose, but a "loyal opposition" (UK term) must also recognise that the majority has the right to implement its programme for so long as it has the votes to do so.
 

I suggest that phg might take a look at Tom Toles' WaPo political cartoon "Supreme irony" today (7/28/10) to see if he may be in need of a sense of humor transplant.

By the way, if Sandy, Jack or other posters at this Blog wish to designate me persona non grata, my feelings wouldn't be hurt.
 

certainly not looking to have anyone designate anyone else persona non grata, especially you, shag, as i generally enjoy your posts, and find them quite informative. i just thought that this time, when sandy was giving "our yodeling backpacker" a compliment, we did not need to take a shot at him, satiric or otherwise. in watching the talking heads on television, we get enough of that kind of stuff these days. looking forward to more of your posts in the future. although i don't comment often anymore, i still read this site regularly.
 

I wonder if phg with this:

" ... in watching the talking heads on television, we get enough of that kind of stuff these days ..."

includes the Daily Show and the Colbert Report as TV/cable talking heads. If so, he might want to check at Josh Marshall's TPM website for links to:

1. The Daily Show take on the Sherrod (Dreyfuss-like?) affair taking, inter alia, Obama's administration to task and Jon Oliver's comparison of Obama to Donald Trump (but sans a bad toupe) firing skills.

2. TPM's 12 most outrageous Tom Tom Tancredo statements to highlight Tom Tom's "Goober-natorial" run for Governor of our yodeler's home state, some of which come close to Yodelism.

I don't think we get enough of this. Let's go back historically to the Adams/Jefferson campaign of 1800 to see how tame I really am. I am not a Frank Buck with a whip and chair, only an occasional quip.
 

I'm at somewhat of a loss as to how the guy who chose the subject can comment gratuitously. In any event, this comment wasn't particularly gratuitous, it must have taken the patience of a saint to have held back comment on that particular subject so long.

Shaq, you're not so bad, your contributions are usually substantive, though the constant refrain of "yodeling backpacker" lost any claim to humor a long, long time ago, you've really ran it into the ground.

Bartbuster, on the other hand, isn't just rhetorically offensive, and essentially content free. His defense of the notion that disagreeing with him is the higher form of incivility is intellectually offensive, as well. One thing I will never doubt, given his tolerance of Bartbuster, is Sandy's devotion to unfettered discussion.
 

Brett, as someone who thinks it's a good idea to transform America into Somalia, you're not really in a position to be calling anyone "intellectually offensive".
 

Brett/phg:

As you may recall. bb is my personal cyberstalker. He has now dedicated years to an attempt to make every blog on which I post unreadable. I cannot fathom the depths of the pathology that drives such a quest. In any case, if you ignore him, he will not go away, but the volume of his posting decreases.
 

Baghdad, it's not me making every blog you visit unreadable, it's you.

Speaking of people who find you to be a despicable lying scumbag, I can't help but notice that you have picked up quite the following over at 538.
 

Brett,
I have the George W. Bush gene for coming up with nicknames, so I'll try Yodelism for a while: OMMMMM.
 

I cannot fathom the depths of the pathology that drives such a quest.
# posted by Bart DePalma : 10:05 AM


By the way, coming from a wingnut who appears to spend every waking hour trolling liberal websites, this is quite comical.
 

I am unsure how the House can be more majoritarian. A party cannot long diverge its governance from the will of its constituents with a two year election cycle.

I think Sandy's point about the lockstep voting has some merit, though. I would hazard a guess that your experience with the Tea Party movement would back that up: the GOP has moved away from representing the will of the citizens in their district/state to spending enormous amounts of time, effort, and money to tell the citizens what their will should be.

Although I have serious doubts about the independence of the TPM, the rhetoric seems to be consistent with people who are tired of their desires being side-tracked even in times of a conservative majority in both houses and control of the White House. Still, without a third option, what are they going to do? Vote Democrat? Yeah, not with their respected talking heads suggesting that the word "liberal" was spoken first by a smiling Satan while sodomizing the rotting corpse of Karl Marx.

If you've ever wondered about the vehemence of Democratic supporters, it's at least partly due to the decision in the 90s that GOP congressmen wouldn't be able to vote separate from the party line. No thought, no responsibility, and--with no alternative--no accountability in the elections.
 

"Durbin Backs Filibuster Reform"

Interesting discussion with links to more.
 

The title of Tom Toles' political cartoon in today's (7/29/10) WaPo "Tag team" follows up his earlier cartoon on the Supreme Court, this time on the choice of guns or butter. LBJ during the Vietnam War said we could have guns AND butter, but we ended up with Richard Nixon who came close, damn close, to ruining the country. George W. Bush, a fellow Texan of LBJ, gave us guns and butter PLUS tax cuts, ending up with the Bush/Cheney crash of 2008. Earlier, in 2000, the Supreme Court's 5-4 Bush v. Gore gave us Bush/Cheney. No mea culpa on the part of the Supreme Court's 5-4, with its follow up 5-4 Heller and McDonald, so now its guns and more guns. So perhaps the resolution is to shoot our way out of "this mess you got us into, Ollie." And Bush/Cheney's Af/Pak venture gets slipperier and slipperier. (No, all this is not spelled out in Toles' cartoon but we are courting disaster.)
 

I don't know if Sandy has checked out the WaPo today (7/29/10), but I would expect him to be nodding his head reading E. J. Dionne, Jr.'s OpEd "In American politics, stupidity is the name of the game," especially with respect to E.J.'s views on the Senate. (I got a headache from my nodding.)
 

DePalma: "It is impossible for 'a group of senators representing less than the majority to ram controversial legislation down the throats of the presumptive majority' because the legislation must also be approved by the House."
As Sandy conceded, your point is valid. However, if the Senate in Washington's famous adage "We pour House legislation into the senatorial saucer to cool it" has the function of protecting the people against themselves (the people pronouncing themselves in "rash" House votes), the question is, if and under what circumstances should not only a Senate majority but also a Senate minority have the power to block legislation.
As regards the sole prerogatives of the Senate, in the past I've been sympathetic to Sandy's idea of allowing the filibuster for life tenures. The Spanish do have a tenure for nine years in their Constitutional Court, and even under such circumstances, the Cortes (parliament) have not been able to find the required super-majority filling up the Court. If I got it right, the functionality of the court is upheld by constitutionally dubious prorrogation of the tenure of the judges slated for retirement. In Germany, where the tenure is twelve years and the Court is less controversial, it has been possible finding the necessary two-third majorities for confirmationwithout too much trouble .
What it shows is, when the will for co-operation is lacking, required super-majorities produce highly detrimental gridlock.
Furthermore, I can't help it but I find the de facto arrogation of constitutional powers via simple rule change in a legislative body highly disturbing. If and under what circumstances super majorities are required should be established exclusively via the constitutional amendment process. Filibuster might be legal but it surely feels illegitimate.
 

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