Comments on: On the Filibuster, Senate Procedure and Checks and Balances

by: Joust The Facts

Wed, 04 May 2024 01:53:02 +0000

Tell Us The Truth, The Whole Truth
John Leo, in US News, writes a concise column which emphasizes for readers just how subtle media bias can be.

by: F. Heile

Fri, 29 Apr 2024 19:11:40 +0000

It is the Republicans who are hypocrits as I explain here<\a>.

And the reason we allow a minority to have some say in our political process is here<\a>.

by: Phil Kober

Fri, 29 Apr 2024 17:54:26 +0000

The problem here is a question of he Senate voting on procedural matters versus voting on substantive matters (like legislation, Constitutional amendments, confirmation of presidential nominees, etc.) There is no question that the Senate can enact whatever procedural rules it wants. Substantive matters, however, are another matter entirely. Here the Senate must do what the Constitution requires. The point I was making is that actual confirmation is substantive, while the filibuster — however it is constituted — is procedure. Generally, a requirement for a supermajority on a substantive matter that is not in the Constitution would be unconstitutional. The same is not true of procedural matters. But the problem here is that the use of the filibuster in this instance effectively creates a requirement for a supermajority on a substantive matter — i.e. confirmation. Whether or not you can get a judicial ruling on this is debatable, there are arguments on both sides. However, the filibuster is a very strange “animal.” First, as has already been pointed out it is a historical artifact. The Senate has changed the rules several times because of its use to block things like civil rights legislation. There is no reason that the filibuster rules cannot be changed yet again. The point I was making, howwever, is that there is a fundamental difference between procedural and substantive matters. Unanimous consent or any other change beyond what it says in the Constitution is clearly unconstitution with regard to substantive matters. The same is not true of procedural matters. But that is precisely the issue here — when is that line crossed? As I stated in my original post, I think there is a violation of the spirit of the Constitution here using a procedural matter to circumvent the clear intent of the Constitution on advice and consent. This is especially true where there is no longer any actual debate — that is playing a procedural game, but I am not sure that the current situation is any better or worse than reading the phone book into the record. The rule here is preventing an up or down vote on well-qualified nominees, it is unfair to them, it is unfair to all of the rest of us, and it is yet another attempt by some members of Congress to constrain the other two branches of government where all three are supposed to be independent and coequal. It is an age-old problem. There have been numerous instances of this in our history — from FDR’s court-packing plan to the Religious Freedom Restoration Act to current attempts to enact legislation regarding jurisdiction of the courts in certain areas. While I disagree with the Smith decision regarding the free-exercise clause of the First Amendment, there is greater danger in enactments of Congress to overturn court decisions. It makes more sense to continue to make good arguments to try to persuade the Supreme Court to change its mind. That is the essence of what happened between Plessy v. Ferguson and Brown v. Board. Yes, it took an exceedingly long time, but the independence of the judiciary is important. And it remains important in the present confirmation fight. That’s why this use of the filibuster is wrong — ideology should not be an issue if we are interested in an independent judiciary. The Senate should be basing its deliberations on qualifications and the lack of bias, not judicial philosophy and ideology!

by: bill

Fri, 29 Apr 2024 12:25:11 +0000

Wouldn’t forcing the Democrats to actually speak on the subject serve to out the lies and make their arguments opem for scrutiny?

Why doesn’t the majority just force open debate instead of this silent crapola? I usre owuld like to hear what their arguments are so we can laugh at them.

by: Steven Taylor

Fri, 29 Apr 2024 12:05:57 +0000

First off: remember, I am for these nominees and for the “nuclear” option, lest there be confusion.

Second: it has never been unconstitutional to use the filibuster to block nominees. The issue isn’t constitutionality, this is my point. Indeed, there have been numerous ways in which Senators have blocked nominees–this is nothing new.

What’s new here is the place in the process that the blockage is taking place and the number of nominees being blocked.

by: Brian Chrisman

Fri, 29 Apr 2024 08:55:59 +0000

Steven, I think Phil is saying that using a filibuster to prevent a vote on a judicial nomination in the senate has always been unconstitutional. Whether it has occurred or not, and whether it has been challenged or not, is a separate question. (Is that right Phil?)
The senate cannot adopt rules that abrogate the constitution. For example, the constitution requires a 2/3rds majority to approve an amendment. Were the senate to enact rules requiring unanimity before breaking off debate prior to a vote on an amendment, would that fail to pass constitutional requirements?
Seems like a bit of a grey area to me.
Certainly if the senate enacted a rule allowing an amendment to pass with only one vote, it would be clearly unconstitutional.
As an aside, though it may be unconstitutional, I’m pretty certain the courts would be powerless to do anything about it except proclaim it to be unconstitutional… probably for the same reasons as Maybury v Madison.. Basically, at some point we have to rely on our bodies of government.
-fooburger

by: The Jawa Report

Fri, 29 Apr 2024 01:30:35 +0000

On the Filbuster, Checks and Balances and Senate Procedure
Dr. Steven Taylor has a good wrap-up on the Constitutional and historical implications of ending the filibuster on judicial nominations. I’m inclined to agree….

by: Steven Taylor

Thu, 28 Apr 2024 23:51:12 +0000

Phil,

Part of the problem with your reasoning is the you keep shifting the focus of what you are are talking about.

Let’s get down to basics: if the internal rules of the Senate state that debate can only be closed by a 2/3rds vote, and that was constitutional, then there is nothing unconstitutional about requiring unanimous consent before debate can be closed off–indeed from 1806 to the early twentieth century, that was indeed how things worked.

Hence, my contention that such a rule could be passed today and still be consitutional is not only logically valid, it has historical precedence.

QED, as they say.

(and no, that would not be analogous to changing the rule on amendment).

by: Phil Kober

Thu, 28 Apr 2024 21:12:16 +0000

The Constitution does not provide for filibuster. That is and always has been a rule of debate, and therefore, part of the internal procedure of the Senate. The Constitution provides that both houses of Congress can make their own operating rules. Legislation and confirmation of Presidential appointees, etc. are matters, however, that are directly discussed by the Constitution. The Senate is not free to change the provisions of the Constitution. There is a BIG difference between the filibuster, a rule of debate, and confirmation of Presidential appointees, a Constitutional power of the US Senate. The Senate can change their own rules and can make any such rules they please, they cannot change the provisions of the Constitution. The analogous idea would be enacting an amendment by say a 90% supermajority — they clearly cannot change the rules in that case. There is a Constitutional implication that legislation and confirmation of appointees is to be done by simple majority. Filibuster is not mandated by the Constitution, but is an internal rule.

by: Steven Taylor

Thu, 28 Apr 2024 17:37:46 +0000

Nebulous “legal scholars” notwithstanding, while I would not support such a rule, I would argue that the Constitution grants the chambers the right to set their own rules.

Indeed, by your logic, the filibuster itself for any reason would be unconstitutional, which clearly is not the case.

To the point: the fact that there are some specific instances where supermajorities are required does not preclude their use elsewhere.

If one wishes to make the argument that a majority of the Senate can do away with the filibuster (and argument with which I concur), then how can one argue that a majority could not require unanimous consent?