Balkinization  

Monday, January 03, 2011

Why Wednesday is the Acid Test of Whether the Obama Administration is Committed to "Change We Can Believe In"

Sandy Levinson

The new Congress convenes on Wednesday. We will know by that evening whether the Administration is serious about "change we can believe in," because Vice President Joseph Biden will have been asked to rule, as President of the Senate (his only constitutionally-prescribed duty) whether the Senate is a continuing or non-continuing body and, therefore, whether, as the latter, it can change its rules, including Rule 22, by a simple majority. He should do so. That, obviously, doesn't conclude the matter, because then the will of the Democratic majority will be tested, and 50 of the 53 Democrats will have to vote to modify the existing filibuster rules. I personally fear that there aren't the votes available, but, to put it mildly, every member of the Senate should be forced to go on the record as to reforming that truly egregious institution (which, of course, I believe would be fundamentally illegitimate even if there were no filibuster, but the filibuster makes it even more so). If Biden refuses to make change thinkable (even if he cannot guarantee its actuality), then both Democrats and democrats should know that the Obama Administration is in no serious way committed to changing the institutional matrix of American politics that makes it next to impossible to achieve its policy goals. And the saddest thing, of course, is that ostensible "Democrats" will not feel themselves under great public pressure, because they know that what passes for the American left, unlike Tea Partiers, seems totally unwilling to engage in serious mass politics (including threats of disruption and other "uncivil" actions). Compare with the terror that the Tea Party has generated in congressional Republicans, each of whom seems to fear a primary opponent in 2012 if they do not themselves adopt the demeanor of utter "mad dogs." I say this less critically than it might sound; the fact is that Tea Partiers believe in democratic politics and have faith in their fellow countrymen and women in a way that the contemporary American left simply does not. And, of course, they know that politics is quite often motivated by anger (which is often justified) and a concomitant willingness to breach certain norms of "civility." (This view, of course, is in tension with the rally called by Jon Stewart.)

The President should hold a news conference explaining why reform of the Senate is absolutely essential and put the spotlight on Democrats. It's utterly beside the point to blame Senate Republicans, who have consistently behaved "rationally" given the perverse incentives generated by our thoroughly dysfunctional Constitution.

As I have previously argued, there may be an argument for retaining some form of filibuster in very limited contexts, including, perhaps, confirmations of lifetime appointments to the federal judiciary. There is no justification whatsoever for the Senate's practice of holds, especially "secret" ones. In any event, Biden's ruling that the filibuster rule is subject to change by majority vote doesn't necessarily entail getting rid of it entirely; rather that there should be a fully serious discussion, covered live on C-Span explaining its merits and demerits to an American public that jusifiably feels ever more alienated from a political system that is not working and, more to the point, cannot work without significant reform. (Perhaps Bernie Sanders can take the lead in explaining the utter bankruptcy of the Senate's way of "doing business.")

For relevant commentary, see the New York Times editorial appearing in Monday's paper and, even more to the point, the op-ed by former Senator and Vice President Walter F. Mondale, titled "Resolved: Fix the Filibuster."

Comments:

The George Washington story of the Senate serving as the saucer to cool the pouring of legislation from the House still makes the rounds. Right now the Tea Party numbers in the House may suggest a very hot cup, such that the saucer needs a functional change. One can cool hot tea by blowing on it or dropping in a ice cube. Or the hot tea may evaporate quickly. Originalists may drink their hot tea by first pouring it into a saucer. But like the Second Amendment, this is embarrassing in this day and age. So let the Senate blow on this in full view of the public so that the public may understand how silly the Senate has become. And let's chill.
 

A few comments/questions. First, as I noted at Point of Order, the blurb on the front page of the Senate website asserts definitively that the Senate is a continuing body, highlighting just how "black letter" this law is.

Second, if Biden rules that the Senate is not a continuing body, does that mean that it has no valid rules? Presumably any rules that it has adopted in the past expired long ago. What are the implications for the legitimacy of actions, legislative and non-legislative, that the Senate has taken pursuant to these (allegedly) invalid rules?

Finally, as a procedural matter, does it actually matter which way Biden rules? His ruling (I think) will be subject to appeal and the vote that matters will be on the question of whether the chair has ruled correctly, not on whether actually to amend the rules.
 

I just checked the bills in my wallet and each one on the back says: "IN GOD WE TRUST." But does this make it so? And what will get you more, these bills or the Senate website with its alleged "black letter" law. As we know from Citizens United, money talks. And consider for how long SCOTUS had been wrong about the Second Amendment. And a website is not a constitution or even a mere statute, perhaps at best merely a scintilla of evidence.

As to mls' second point, rules can be extended by implication or custom. Perhaps there is some evidence out there that Senators have raised a similar point, but I'm not aware that the Senate has ruled on any such complaints.

As to mls' final point, what form does he think such an appeal might take? Wouldn't this be too "political" for the Supreme Court, as well as lower federal courts, to take up? Oh, I forgot, there's Bush v. Gore.

Maybe mls' points will be included in the anticipated Senate debate. I hope so, as this would further my point of how silly the Senate has become. In the meantime, I'm "Biden" my time.
 

Shag- the appeal I am referring to is to the Senate, not to a court.
 

I would be utterly shocked if fifty Democratic Senators vote to abolish the filibuster less than two years before most of them expect to be in the minority.
 

I'm curious as to the form of appeal to the Senate on such a proposed ruling by the VP. Is there a vote by the Senate, and if so, what is the voting requirement: majority, 60 or 67? And can such a ruling be filibustered? Does such an appeal involve a "Catch-22"?

I thought Brett had had enough shocks. Of course, his biggest shock may come in 2012 with the reelection of Pres. Obama plus a Senate democratic majority - and possibly House - if the Republicans in Congress actually stick to their indicated course. Whatever the shocks, Brett won't lose any hair over it. The last time I was shocked, was the election of Richard Nixon. He didn't ruin the country, but he came awfully close; Congress performed well following Watergate. Perhaps Congress, whether or not filibuster remains, may perform well once again following the anticipated debate in this Sesqui-Centennial Year of the beginning of the Civil War.
 

Shag- my recollection is that the appeal would be by majority vote. That is what I am saying, regardless of how Biden rules, a majority of the Senate gets to decide whether the filibuster rule (ie, the rule which allows filibustering a motion to amend the rules) is valid. So I not sure it matters what Biden decides.

Funny you should bring up Richard Nixon, since he ruled, as VP, in the manner that Levinson wants. But his ruling was overturned by the Senate on appeal.
 

The House does a few things before setting up new rules. Custom and law guides them in this respect.

The Senate, continuous body or no, retains a constitutional power to establish new rules. This power is by majority vote, a supermajority required for only a few things.

Somewhat ironically, this includes a majority having the power to set forth rules requiring a super-majority to do business. The same majority, by custom doing so at the start of the session, can change the rules for filibusters.

The Senate can change rules piecemeal or totally. The proposed changes by Sen. Udall, a leading proponent here, does not desire to end the filibuster. The Democrats will retain that power, for good or ill, as well as other means to delay, if they lose their majority.

History has shown, however, that overall, one party used it in recent years much more than the other, few things really blocked during the Bush years. In fact, if Bush et. al. put as much effort in privatizing Social Security (whatever that might mean) as Obama and the Dems did on health care, that would have probably been passed in some form too.

A betting man might think some weaker filibuster reform will get bipartisan support. We shall see.
 

Joe- what is the basis for this sentence: "The same majority, by custom doing so at the start of the session, can change the rules for filibusters. "
 

mls, I think your question is backward. The correct question is, what is the authority that it takes more than a majority to change the rules of the Senate?
 

Sandy:

The Tea Party folks support repealing the filibuster and the Dems would likely get GOP support for such a repeal.

However, the Dems have no reason to remove the filibuster now. So long as the GOP owns the House, the Dem Senate cannot enact any more of Obama's initiatives to expand the reach of government. On the other hand, without a filibuster, the GOP only needs four of the twenty-some Dems up for reelection in 2012 to enact things like the repeal of Obamacare, putting the President on the spot to veto such popular measures.

I would be amazed and thrilled if the Dems repealed the filibuster. Their strategy is to attempt to deep six GOP House bills without a vote they have to explain to voters in red states.
 

While our former Backpacker may be a big mucky-muck Tea Partier in CO, perhaps a couple of notches below Tom-Tom Tancredo, he may not be the voice of the national Tea Party Nation which sent a letter to Sen. McConnell and Rep. Boehner after last November's election, accessible at:

http://www.politico.com/static/PPM153_aaa_112110.html

In reading the Tea Party Nation's wish list for its movement, I did not note that the filibuster was included. About 4 pages of signers follows the letter and neither our Yodeler nor his Tom-Tom is listed. (Note: I was unable to access the letter at Safari but was able to do so with AOL.) Perhaps the thin air in the CO hills not only boils water (for tea) faster but our yodeler as well.
 

Mark- if what you mean is what is the authority for the proposition that it requires a 2/3 vote to proceed on a motion to amend the rules, the authority is the Senate rules themselves, as well as Senate practice and precedent applying those rules.

But my question went to Joe's statement that a majority "by custom doing so at the start of the session" can change the rules. I was just wondering where he gets that from.
 

"Of course, his biggest shock may come in 2012 with the reelection of Pres. Obama plus a Senate democratic majority - and possibly House - if the Republicans in Congress actually stick to their indicated course."

I wouldn't be particularly surprised by Obama winning reelection in 2012; After all, he's got a huge advantage going into that: He's going to be running against whoever the Republican party pukes up, not "none of the above".

The Democrats are at severe structural disadvantage going into 2012, what with so many more Democratic than Republican Senate seats up for election. However, it never pays to underestimate the ability of the GOP to snatch defeat from the jaws of victory. They're inclined to mistake one last chance for an enthusiastic embrace, and could very easily blow it.

So, I'd say that the Democrats losing control of the Senate is more likely than not, given whose seats are at risk, but I certainly wouldn't bet good money on it.
 

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But my question went to Joe's statement that a majority "by custom doing so at the start of the session" can change the rules. I was just wondering where he gets that from.

Art. I provides the Senate the authority to set rules of proceeding, and it not fitting various exceptions, the default of "majority rules" applies as with picking majority leader or whatever.

FWIW, I think such rules changes probably can occur throughout the session, again it not being one of the exceptions (such as when to start the session), but custom appears to suggest the start of the session is of particular importance here.

I don't think this is a novel interpretation, even if one might find it wrong.
 

I'd add that the Senate has by custom tried to act by common consent as much as possible. This became a basic ethos, so much that one senator could hold up the works for an extended period of time.

This does not mean a majority suddenly has no constitutional power to act on its own. This is particularly the case if the old rules are basically violating the spirit of the discretion given.

The force of custom to block what is technically allowed is apparent in various matters. But, custom can change, especially if it fails the test of time.
 

As a constitutional matter, there's no particular question that a majority in the Senate can change the Senate's rules at any time. They might not, as a matter of tradition and self-interest, but they can. Who's to stop them? The minority are, by definition, the people who lose votes, and if there ever was a genuinely non-judiciable matter, this is it.

The filibuster isn't going to be abolished because there aren't enough Senators who see abolishing it as in their own interest. Not because of the Constitution.
 

I would support an experimental rollback of the Mansfield two track rule* for the Senate filibuster. I recall some of the nominations during the two terms when GWBush was president, and believe Democrats will give somber recollection to those times and not revoke the current configuration of the filibuster to any substantial degree.
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* cf. fn.11, p4 of article by Maglioca (2010), 110 KB filesize, citing article by Fisk + Chemerinsky (2004).
 

loc.cit..
 

I don't think there is anything close to a majority in support of abolishing the filibuster, as opposed to weakening or reforming it in some fashion. So I'm not sure why so many comments focus on the nonexistent binary choice between the present system and wholesale elimination of the filibuster.
 

Ok, lets suppose there is a ruling from the chair this week regarding whether a motion to amend the rules is subject to filibuster. The ruling is appealed to the Senate. Which of the following do you think best describes the obligation of a Senator

1.The Senator has a constitutional obligation to vote that the motion is subject to filibuster. The Senate rules, which were validly promulgated pursuant to the Rulemaking Clause, are clear on the point.

2.The Senator has a constitutional obligation to vote that the motion is not subject to filibuster. The Senate rules are invalid as they conflict with the Rulemaking Clause, which gives a majority of the Senate the power to promulgate rules.

3.The Senator has no absolute obligation either way, but has a duty to balance the Senate’s institutional interest in preserving its rules and traditions (regardless of whether one considers this interest constitutional or extra-constitutional in nature) versus the interest in ensuring that the Senate’s rules do not effectively deprive the Senate of its rulemaking power and/or conflict with the principle of majority rule.

4.The Senator has unfettered discretion to do whatever he or she wants.
 

Mark- if what you mean is what is the authority for the proposition that it requires a 2/3 vote to proceed on a motion to amend the rules, the authority is the Senate rules themselves, as well as Senate practice and precedent applying those rules.

This strikes me as bootstrapping. I agree with Brett and Joe (surely one of the more unusual combinations on this blog).

As for your Final Jeopardy question, I'll take No. 2.
 

Number 3 basically addresses what I would say would occur in practice.

It isn't constitutionally subject to filibuster but since a senator would ultimately vote on whether or not to continue it, #2 is somewhat theoretical in practice. #4 is realistically true, but as a matter of "obligation," #3 works best.
 

Looks like the GOP will keep two promises immediately – publishing bills long before the vote so folks can read them and voting to repeal Obamacare. The bill should be online tonight and the House will vote on it next week in the full light of day rather than tomorrow at midnight per Pelosi SOP.

The Dems are already squealing like little piglets and are promising to bury the bill in the Senate. With around 60% of LVs supporting repeal and over 20 Dem senators up reelection next year, no wonder they are running from a vote.

The chances of the Dems actually repealing the filibuster just dropped to between nil and nada.
 

Here's what our Yodeler said at 12:48 PM:

"I would be amazed and thrilled if the Dems repealed the filibuster."

Then at 8:03 PM he said:

"The chances of the Dems actually repealing the filibuster just dropped to between nil and nada."

I guess the thrill is gone. According to him, the Tea Party will be disappointed that the filibuster will not be repealed, since he also said at 12:48 PM:

"The Tea Party folks support repealing the filibuster and the Dems would likely get GOP support for such a repeal."

Damn, the Tea Party folks cannot be relied upon.
 

Sen. Tom Udall has an op-ed in today's WaPo on the action he plans to take up in the Senate tomorrow. Let the debate begin.
 

Udall says " on the first day of the new session, the rules can be changed under a simple, rather than two-thirds majoriity.". Can anyone defend this proposition? (I am interpreting this to mean that after the "first day" amendments require two-thirds)
 

"Can anyone defend this proposition?"

I don't know Sen. Udall's positions enough to assume that he accepts that the 'constitutional option' only can take place on the first day of the session.

But, given custom, the "proposition" that not doing so will in effect mean the Senate accepts the previous rule for the whole session is not imho that controversial. I think that is what he means, and I wouldn't read any more into it.

And, a custom of setting forth the beginning of a new session as the time to set rules is also defensible, just like various people set rules at the beginning of things and stick with them, even though they often could change things in mid-stream.

"Continuous body" or no, each new session is a reasonable time to re-examine rules if desired, including given new members etc. Following at least the spirit of #3, balancing various things, it is a reasonable custom to use that time to allow rules changes by majority rule.

Again, I don't see him necessarily agreeing that the "constitutional option" can ONLY be raised there, but that custom has made it the best time to raised it. This custom is reasonable and a majority can in effect uphold it by voting not forcing the issue.
 

I'm looking forward to the debate on the floor of the Senate to measure the substance of the filibuster issues. Whatever the Senate decides, we can then watch the Senate in its subsequent actions or inactions to compare with Senators' statements on the issues.

I smiled on noting mls' comment concerning Nixon's proposal/ruling as VP that the Senate rejected. Unlike Ike, the Senate did not need two weeks to think of any positives for Nixon.

Following the Senate debate on the filibuster, I anticipate a flurry of pundit commentary followed by some biting humor on late night. Perhaps the Senators will be thinking about this as they debate to avoid being caricatured.
 

http://www.msnbc.msn.com/id/26315908/#40901856

In fact, a senator discussed the matter last night (see link) and said just that -- a majority can constitutionally act whenever, but Senate tradition and the logic of doing it then is guiding action here. Realistically figuring that will stay in place, the first day is cited as the key moment.
 

Joe- thanks for your response. I think we agree that Udall’s position must logically be based on the proposition that the Senate rules cannot, as a constitutional matter, limit the ability of the majority to amend those rules (at least limit the ability of the majority in the manner that the rules purport to do-- I would argue that you can’t really have rules in the first place unless they place some constraint on the majority’s ability to do whatever it wants).

Udall implies that under his proposal, the Senate would consider changes to the rules by a simple majority, but only on the “first day.” You are suggesting that what he means by this is simply that the first day is the reasonable time to consider such changes, not that the first day is the only time on which it could be done. But then what does he mean by referring to the two-thirds standard? If a motion to amend the Senate rules is made after the “first day” (which has to be put in quotes because a “day” apparently means however long Harry Reid decides a day should be), what vote does it take to move to final consideration? If it is still a simple majority, then Udall’s statement has to be considered highly misleading

Now lets turn to Senator Merkley’s explanation contained in the MSNBC clip. As hypothesized, he contends that constitutionally the rules can be amended by simple majority at any time. However, he explains that under “precedent” the right time to take this action is on the “first day.” But what is the precedent to which he refers? There is no Senate precedent for amending the rules by simple majority on the first day. Indeed, there is no Senate precedent for amending rules on the first day, period. Take a look at the CRS report (last updated 12-1-10) that describes Senate procedure on the first day. It describes both the actions that the Senate routinely takes (eg, swearing in new members) and those that it sometimes takes. Nothing about amending the rules.

Now I suppose there is Senate precedent for claiming that the rules can be amended by a simple majority on the first day. This was the argument first made by Senator Walsh and then later by Senator Anderson. But when this argument was put to the test, the Senate rejected it. More than once. Is this the “precedent” that Merkley and Udall are relying on? The only other precedent I can think of would be the vote on Senator Mansfield’s point of order in 1975, which, according to Wawro and Schickler, “was the first instance in which a majority of the Senate voted to establish a precedent that would enable cloture by majority vote, although at the time there was disagreement about the impact of the vote on the Senate’s rules.” But that precedent (1) wasn’t on the first day, (2) wasn’t based on differentiating the first day from any other day and (3) in any event was reversed by the Senate a couple of weeks later.

Now I suppose that you can argue that this is all part of the bargaining process in which Udall and Merkley claim the power to amend the rules in the hopes that the Senate will reach consensus on some moderate reforms (such as eliminating secret holds, although I thought they already did that). But it still grates on me when they claim things that have absolutely no basis in reality.
 

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Sandy:

You might want to post about Obama's current consideration of a plan to ignore the congressional budget restriction against spending money to bring Gitmo detainees to the US for trial as an encroachment on his executive power as president.

http://www.nytimes.com/2011/01/04/us/politics/04gitmo.html?_r=2

When Bush considered something like this, it was good for about a half dozen posts here protesting an imperial presidency.
 

Udall says " on the first day of the new session, the rules can be changed under a simple, rather than two-thirds majoriity.". Can anyone defend this proposition? (I am interpreting this to mean that after the "first day" amendments require two-thirds)

The consistent theory that would allow this statement to make sense is:

A) The Senate is not a continuing body, and thus has no rules at the beginning of a session.

B) In the pre-rule state, the Senate is empowered by the Rules Clause of the Constitution. The applicable procedures before rules are adopted are the common law rules that bind all legislative bodies when they first convene. A basic principle of this legislative common law is majority rules.

C) The Senate rule making power under the Constitution, includes the ability to bind that Senate to rules that require a super majority to make further rule changes.

Thus, before the rules are adopted rule changes only require a majority vote, but once rules are adopted that say otherwise the remaining session of that Senate is bound by those rules.

N.B. I don't think that C is actually true, but it is certainly plausible.
 

The 2/3 standard would appear to be the usual supermajority required under Senate practice. The first legislative day would be different. This again is said to be custom, not constitutional requirement, but custom is often realistically not much different in practice. Thus, the use of "can."

If the two senators are speaking fiction, they aren't the only one stating it. They are setting forth a theory many argue is valid, on both sides.

As to earlier "rejection," in one instance said "rejection" was only after a compromise was agreed to. Using the #3 reasoning, the "rejection" is contingent. The opening is always present. Like declaring independence, it is an open option, even when it is not carried forth or the time not deemed correct.

I don't see how the CRS report proves things one way or the other. Senate tradition is to avoid making this an issue. Previous agreements are made on rules. The issue isn't forced. Thus, the constitutional option would not be cited in such a quick summary of what occurs.

The bottom line, pushing past worrying about the nuances, is deciding if the principle is reasonable. It is.
 

Joe- people may disagree on the number of instances needed to establish a "custom" or "tradition" but I would think that one is the minimum.

BTW, I have posted on this at Point of Order.
 

Udall, Hatch et. al. have noted that the underlining principle has been accepted to the degree it is custom, influencing events, even if not taken the whole way.

Perhaps telling me something, my comments are not showing up. If the previous two do pop up, I apologize for repetition.
 

The WaPo has an editorial (posted 1/4/11) "The filibuster's future" that reflects my thinking. And Ruth Marcus offers in her WaPo column (1/5/11) "Be careful what you wish for on filibusters, Democrats" that is a tad too timid for an allegedly liberal pundit.

And to go off topic, the WaPo features Ann Telnaes' animated political cartoon "Justice Scalia and the 14th amendment" that perhaps Jack Balkin should use as an update for his recent post at this Blog.

Back on topic, I have resisted mightily addressing mls' most recent comment " ...on the number of instances needed to establish a 'custom' or 'tradition' but I would think that one is the minimum." This is sort of "tongue-in-cheeky" or perhaps philosophical, somewhat like Lindsay Lohan's recent tweet on her clinic release "today is the first day of the rest of my life." Either that or mls has finally had a sense of humor transplant - if so, I hope it will not be rejected.
 

Mostly non-germane, here's a "My Diavlog With Sandy Levinson" from Randy Barnett.

http://volokh.com/2011/01/05/my-daivlog-with-sandy-levinson/
 

As far as I can tell, Biden wasn't asked to make any rulings today. Apparently a rules package was introduced, but not voted on.
 

I can get nostalgic at the strangest times. I was humming "What a difference a day makes/Twenty-four little hours ... " as I read Joe Strupp's Media Matters article at:

http://mediamatters.org/mobile/blog/201101040027

posted 1/4/11, titled: "AEI's Ornstein: Democratic Proposal to Extend Legislative Day Not Improper."

As the Senate's first day is extended, we'll all be in a daze, wondering about the strategies, the debates. And the song's closing line: "And the difference is you" makes me wonder who will be the "you" that makes the difference with the filibuster rule. Perhaps its will be Sen. "YouDoll."

By the Bybee (@*^&%$#), I prefer Dinah Washington's version of this classic.
 

Ok, so now "day" is an ambiguous word, which can mean an arbitrarily long period of time if convenient...

What's next, "shall" and "not" exchange their meanings at convenience? I don't care how many times it's been done, the mere fact that an abuse has happened in the past doesn't mean it isn't an abuse anymore.
 

Obama's nominee to head OLC authored an article that defends the constitutionality not only of the filibuster but of the entrenchment of Senate rules that prevents a simple majority from changing them. How does this impact " change we can believe in?"
 

The ambiguity of what constitutes a "day" does not result from the use of "day" in the Constitution but from the Article I provision authorizing Congress to set its rules.

As for "shall," sometimes it has been construed as "may" and vice versa. As for "not," recall Justice Black's emphasis on the word "no" in the First Amendment. Interpretation has long involved ambiguities, whether regarding the Constitution, statutes, rule of Congress, and, yes, even Roberts Rules of Order. Clever counsel over the years pour over such things looking for loopholes to advance a position, perhaps such as what was allegedly advanced by the OLC nominee.

My reading pile is getting too long as my eyes are bigger than my aging brain can handle. In the pile is Josh Chafetz's "The Unconstitutionality of the Filibuster" available at SSRN:

http://ssrn.com/abstract=1730782

in the form a draft of an article forthcoming in the April 2011 issue of the Conn. L. Review. Now that the Senate's "day" has been extended, perhaps before it is concluded in the next several weeks, I'll have a chance to read the draft (that runs 43 pages) on a timely basis.

By the Bybee (&$^%@$#), there used to be a restaurant near the State House here in Boston called "FILL-A-BUSTER" that catered to political types and other trenchermen at reasonable prices. Perhaps there may emerge from the current filibuster debate a PUNXUTAWNEY FILL "hero" to be featured on SNL.
 

Day ... Date.

A recommendation by a guest blogger here who wrote about "war time" led me to purchase "A Date Which Will Live: Pearl Harbor in American Memory" for my new Kindle. I used the text to voice function. A bit rough, but nifty.

It's a fairly worthwhile look at historical memory. The Kindle btw also allows easy access to SSRN .pdf file articles, including one by Balkin and Levinson on the 13 faces of Dred Scott.

Wifi accessibility even allows one to check for Balkinization updates. I also here that Justice Kagan is a big fan.
 

Shag, you're defending the idea that "day" can legitimately be interpreted as "two days". That 1=2.

We truly have passed beyond parody. How can language be used as a tool of communication, if words don't have at least somewhat fixed meanings?

I'd be cool with the Senate changing it's rules by majority vote any old day. But, pretending that the second day of the session is the first? That's unadulterated BS.
 

Brett- I would share your outrage,except that the whole "first day" thing is entirely made up. As far as I can tell, nobody actually believes that the first day is different from any other day. I think it's more for the benefit of Senators who don't entirely buy the theory that the cloture rule is a nullify-- it sounds better if you only ignore the rule on the first day. Or alternate Tuesdays.
 

I mean nullity.


BTW, anyone see Greenwald's post on the American teenager who was detained, and apparently tortured, in Kuwait? Not nearly as outrageous as filibustering unpopular laws, but still . . .
 

Brett, I'm not defending "day" but the Senate is not my ballpark; it sets its rules under the Constitution. Just like I don't defend "day" in Genesis. I've been a lawyer for some 56 years. What we do is look for loopholes in our advocacy, as do Congressmen and other politicians. But I do defend "Wick-burn" [sick!]. And I don't believe, despite Randy "Comments Off" Barnett that the Constitution is lost. (A copy is buried with the late Sen. Byrd in his vest pocket.) And I don't make the rules at this Blog. I play along. But in my own home, I do make the rules and expect them to be respected.

Now off topic since Jack, in his house here, doesn't permit comments on his posts, the WaPo (1/6/11) features David Cole's "The Conservative Constitution of the United States" that parodies the House's reading of the Constitution that Jack criticized. I would expect even Brett and mls (but not our Yodeler) to get a chuckle from it.

Kathleen Parker's WaPo column for tomorrow (1/9/11) "Leave Twain alone" is somewhat related to the House's reading of the Constitution. Here are her closing paragraphs:

"Is the N-word problematic in a nation forever shackled to a racist, slave-owning past? Absolutely. But removing it from books won't eradicate it from history, nor alter the pain it provokes. Should we talk about the harm it did and still does? Certainly.

"But selectively editing literature, like history, is denial by any other name. When it comes to denial and truth, as everyone knows, never the Twain shall meet."

Another off topic regards Heather's post responding to Brian's post; while Brian's permits comments, the response does not. This doesn't seem fair. But I don't make the rules at this Blog.
 

My linking of Kathleen Parker's column to the House's reading of the Constitution may seem abstruse to some but it highlights the elimination from the reading of provisions in the Constitution those that related to slavery (although the word slavery is not used) that were amended out four score years later following the Civil War.

By the Bybee (*$&^@$#), Stephen Colbert has a recent segment on the censorship of Mark Twain's Huckleberry Finn, one of the best lines of which states that instead of substituting "slave" for the N-word" Stephen would modernize with "intern."
 

The Genesis reference is telling. "Day" is a term of art that means different things in different contexts. Brett might think it ridiculous or whatever. He thinks all votes should be by yeas or nays. The Constitution doesn't require that either.

mls asked about the 'impact' of some article written by an executive nominee in the past about the internal workings of another branch. "Change we can believe in" was added in. I don't think it was meant to be taken seriously. Why would it? Why would some article, let's recall the proposal will not in no way end the filibuster anyway, have any?

As to GG, the filibuster helped block various legislation and nominations, including Dawn Johnsen's nomination. This has relevancy to the second thing.

Reference is made to "unpopular laws." Yes, this is the case. The filibuster is never used to block legislation passed by the House, supported by a majority of the Senate, the White House and the public at large. Or, judges or other nominations who later are confirmed with 80 or 90 votes.

Oh, wait, It is. I guess there is some basis of reality there, though.
 

Joe- was my reference to Seitz's article meant to be taken seriously? That's a good question.

Let's review the bidding. Professor Levinson posted that the VP must rule in favor of a challenge to the filibuster or be guilty of something. Was that meant to be taken seriously? I am not sure. Does Levinson believe that the VP ought to make the "correct" constitutional ruling? I am not sure about that either. If you assume that he does, then I would think that it would matter a good deal that the OLC nominee, who is supposed to be the administration's principal advisor on constitutional issues, believes that the correct ruling would be against Levinson's position.

OTOH, it may be that it doesn't matter what the correct answer is-- all that matters is that the ruling achieve the result desired. The job of the lawyer is simply to look for the "loophole" that achieves the result her client wants. In which case it doesn't matter what Seitz believes- just that she is clever enough to find the best available loophole.

Which of course is exactly the attitude we want at OLC, right?
 

Going back to what was actually said, we are asked what "impact" some past article by an executive nominee will have on "change we can believe in" regarding what amounts to a political question that is made by the v.p. (ultimately a matter of independent judgment] in his legislative role.

Oh, it was noted she supported "the constitutionality not only of the filibuster" which is not the immediate issue either, since the plan is to reform, not end it.

A non-binding past article by a nominee would have how much impact here? An article that very well might not be her position now. Toss in the 'change we can believe in' comment, which comes off as snarky, it's hard to take very seriously.

Ditto a follow-up that suggests not thinking an article will have that much impact in this respect appears to amount to someone thinking any loophole works is the policy being favored.

Anyway, this might be the article in question:

http://www.student.virginia.edu/~jalopy/PDFs/20-1/001-029.PDF

Appears to argue for the constitutionality of supermajority rules as a matter of custom and the nature of the Senate itself. But, I don't see anything that denies the majority of the Senate has the power, if it wanted to do so, to change the rules on the first day of the session.

The custom and nature of the Senate via the #3 option would leave that open in the right situation.
 

OOPS! I just got to my NYTimes hardcopy today (1/8/11) and saw that Adam Kirsch in his op-ed 'The First Drafts of American History" much, much better states the connection between the Hucklelberry Finn revisions and the reading of the Constitution in the House per the controlling Republican Party.

2011 is not only the Sesque-Centennial of the start of the Civil War but also of the success of the Republican Party in ascending to the presidency with the inauguration of Abraham Lincoln. The current Republican Party, at least as represented by the House majority, is substantially different from Lincoln's Republican Party. Consider that because of the1960s Civil Rights and Voting Rights Acts, a significant group of new Republicans emerged in the Southern, especially former slave, states, which Richard Nixon employed as his southern strategy. Today, many of the New House Republicans got there via the Tea Party, which was anti-everything that Barack Obama, America's first African American President, was for, with some questioning his place of birth - and religion. The mandate of the current Republican Party is to see that Obama does not serve a second term. Meantime, we have overlaying this the revisionism by some of the former slave states in their "celebration" of secession. So the current Republican Party can no longer state that it is the party of Abraham Lincoln. The House Republicans demonstrated this by their omissions from their recent reading of the Constitution. If there are any moderate Republicans left, how long will they remain silenced?

By the Bybee (*#^%@$&), the WaPo website has James W. Loewen's article "Five myths about why the South seceded" to answer some of the referenced revisionism.

Had it not been for Abraham Lincoln, Brown v. Board of Education and the Civil Rights and Voting Acts of the 1960s, Barack Obama would most likely not be President today. The current Republican Party doesn't like what Lincoln et al wrought.
 

"But, I don't see anything that denies the majority of the Senate has the power, if it wanted to do so, to change the rules on the first day of the session. "

Or any other day. I just object to the notion that legislators are entitled to claim that 2 days are one, just so they can pretend they made the change on that "first day". That's just dishonest.
 

Brett's:

"That's just dishonest."

should be addressed to fundamentalists (religious originalists!) about the 6 "days" of Genesis I. Now, I don't know if Brett is a religious fundamentalist but he seems to be one constitutionally at least. Consider the impact of the Senate's "day" being dishonest with the impact of the 6 "days" of Genesis I, where a "day" may be an eon, not just 2 days that Brett complains of with the Senate.
 

Various terms like "person," "hour," "forward pass," "possession," whatever, have certain special meanings in various contexts. This is well accepted in those areas.

Using them again in those ways is only "dishonest" if each and every one somehow has to use some one size fits all objective meaning of the terms. Brett has shown his dislike of certain professional terms of art. "Dishonest" therefore must be seen as a term of art too, apparently.

The idea is various obvious and aboveboard. The beginning of the session, forced to or not, has been accepted in theory by many on all sides as a time to change new rules. In often convoluted rules, rules only more so by the supermajority custom many support not allowing more simplicity in real world practice, a "legislative day" is used.

An "hour" at a therapist isn't 60minutes and a legislative day isn't merely just 24 hours. No lie.
 

I look forward to Professor Levinson's thoughts on the apparent compromise reached in the Senate with regard to the filibuster.
 

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