Monday, March 07, 2005

More on the filibuster

Jenn Carter responds that she opposes the filibuster regardless of who the parties are. She also expresses admirable candor that she has written about the controversy only because of the present controversy and that she would like to see many of President Bush's nominees confirmed.

She also offers an argument rooted in the constitutional text that the framers must have intended for only a simple majority in the Senate for it to consent to the President's nominees because the framers elsewhere specified that a two-thirds majority is required for Senate approval of a treaty, but did not so require such a supermajority in the appointments context. I agree that the framers offer more specificity in the treaty context, but I also don't see why this provision can't be interpreted as giving the Senate more leeway in determining house rules in the appointments context (the framers, after all, were particularly worried about treaties and may have wanted to constrain Senate flexibility in that respect). Because the text is susceptible to multiple interpretations, it does not clearly say that the filibuster is either constitutional or unconstitutional.

As for past institutional practice, the history of the practice seems to suggest its constitutionality, since it has been around since the early congresses, and in fact it used to be much harder to override filibusters than it is today. But then again, is institutional practice really an appropriate tool to use when interpreting the Constitution? Again, it is up in the air.

Because it is within the bounds of reasonable disagreement, Ms. Carter's argument has merit; I just dispute that it is dispositive. But I find it puzzling when she writes:
You ask whether I'm willing to condemn the 1990s Republican Senate for holding up President Clinton's judicial nominees. Although I think that what the Republicans did to Judges Paez, Berzon, and Fletcher was awful, it was all fair game in the political give-and-take that the Framers anticipated in this majoritarian system. Had the Senate Republicans been the minority, and had they resorted to filibustering Clinton's nominees, I would condemn that as unconstitutional. But that's not what they did, and I think the difference is crucial from a majoritarian perspective.

This distinction that Ms. Carter draws between the hold and the filibuster does not follow on majoritarian grounds. If anything, the filibuster is far more majoritarian than the hold is, because it takes 41 senators to launch a successful filibuster, but only one senator to place a hold, perhaps to the irritation of the other 99 senators. If this difference is "crucial from a majoritarian perspective," then it would seem that the filibuster is "more constitutional" than the hold. At the very least, if she is going to condemn the filibuster on majoritarian grounds, she has to also condemn the use of the hold. (Also, what if Democrats placed a hold on all nominees instead of filibustering -- would she be for that?)

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