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The Filibuster, Again

Wednesday, December 29, 2010  |  posted by Hugh Hewitt
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The Washington Post’s Ezra Klein picks up on Senator-elect Mike Lee’s statement on my program Monday concerning the use of filibusters against judicial nominees. (The transcript of that interview is here.)

Klein notes that “a lot of Democrats” are on the record opposing the end of the judicial filibuster in 2005.

In fact, no Democrat supported ending the filibuster of judicial nominees. Republicans were divided, which is what led to the Gang of 14.

Klein goes on to argue that “[t]he irony is that if there’s any area of the Senate’s business where a supermajority-requirement makes sense, it’s judicial nominees.”

“Judges, after all, are appointed for life,” Klein concludes “and impeaching a judge requires 67 votes in the Senate, not to mention a majority in the House.”

Here’s another irony: Klein’s argument ignores the key role played in the Constitution in deciding what vote level is necessary to accomplish what action. Klein ought “never to forget that this is a Constitution we are expounding,”
and if he is going to cite the Constitution he ought to be prepared to let it guide his entire argument.

The impeachment vote requirement –“two thirds of the Members present”– is set forth in the Constitution in Article I, Section 3. In sharp contrast, the confirmation function is detailed in Article II, Section 1, which states that the president “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”

The confirmation process is settled upon the entire Senate, with the implied majority being the obvious and, until 2003, exclusive standard for nominees, though the rules of the Senate did in fact bottle many nominees over time in the various committees.

By contrast the legislative filibuster, another rule of the Senate like those applying to the processing of nominees, has been a feature of Senate procedure for decades and decades.

Here is the key: The Constitution clearly anticipated that the entire Senate would vote on nominees, but it anticipated nothing of the sort when it came to legislation, thus any position on the legislative filibuster is “constitutional,” but advocacy of filibusters on nominees is at best extra-constitutional and at worst unconstitutional.

What some Democrats are now attempting to accomplish is a complete change in their position of 2003 to 2005 when they were manning the barricades against judicial nominees –and in an extravagant and wholly unprecedented and indeed radical way– without explanation. Some Republicans may try the same thing but, as my interview with Lee pointed out, those of us who care about this will not let the GOP senators simply switch positions without comment, while apparently much of the left is content to simply go along with whatever position suits their interests that day. This disregard for the Constitution and for precedent generally is what has fueled a great deal of the Tea Party movement, and any attempt by the Democrats to unilaterally decree a change in long-standing rules on the filibuster would be a huge issue in 2011 and 2012 not because people care about rules of the Senate, but because of the general sense, still widely shared and deeply felt, that the Democratic Party is under the control of power-drunk radicals of the left and indeed the far left and that D.C. Democrats are doing whatever they can to appease these radicals.

The GOP is back in power in the House because it is perceived by a large majority of Americans as much more responsible and much less likely to radically alter the way the American government functions. Had the entire Senate been on the ballot in 2010, the GOP would be running that chamber as well, as it most likely will be in 2013 after the dust clears if the Democrats refuse to return to the center. All the nonsense about an Obama rebound is just that, and a few weeks of the lame duck doesn’t erase or even palliate the radical nature of the Obamacare jam-down or the vast centralization of power in D.C. or the enormous expansion of federal spending.

The election of 2010 was driven in part by dismay over the economy and especially unemployment, but also by a deep unease about the radical nature of the Obama agenda at many levels. Even if the economy recovers and employment begins to creep up this fundamental unease with the hard lurch left won’t abate by 2012, and if the Democrats in the Senate begin with an obvious attempt to shore up their fading power, they will have rekindled every concern about the party’s capture by the hard left.

Republicans on the other hand have to develop and articulate a principled position and one that is understood to rest on the bedrock of the Constitution. It would be persuasive to me if, for example, Leader McConnell and Whip Kyl appeared and announced that they would support filibuster reform for judicial nominees that would take effect in 2013, after President Obama has either won or lost re-election, but that the record of the Democrats in 2003 through 2005 will not allow them to agree to any reform with an immediate application as such an agreement would reward the irresponsibility of the radical Democrats, especially Patrick Leahy, during those years. That position could be softened for appellate judges upon acknowledgement by Democrats, such as Leahy and Schumer, of their backflip, but given that that which gets rewarded gets repeated, the Democrats should pay some price for their recklessness with judicial nominees in the Bush years.

Nominees to the Supreme Court are in a different category altogether as neither Chief Justice Roberts or Justice Alito were effectively filibustered, though many Democrats wanted to, including President Obama. Given that President Obama has already selected two members of the Supreme Court and has now suffered by his own admission a “shellacking” it would be wise to refuse to agree at this point to abandon the possibility of a filibuster of a Supreme Court nominee should a vacancy occur in the next two years. The nation almost certainly ought to have a chance to vote up or down on the president again before allowing him to name a third or more of the lifetime appointees of the Supreme Court.

Because the GOP majority in the House will block any new legislative initiatives from the president that are at all of a piece with the radicalism of his first two years, the president will have to serve his left-wing constituencies through his foreign affairs agenda and through nominee battles, including over judges. The Democrats positioning on the filibuster is just the opening act in the care and feeding of the nutroots, but the GOP needs to respond effectively and early with a position that will endure over the next two years and which will be an issue in the fall of 2012.

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