In reading various commentary on the current situation (including comments left here on PoliBlog), and listening to both news types and politicians, it has underscored to me the lack of general understanding of basic principles and issues of our federal government.

What is especially frustrating is that the lack of understanding of some of these ideas leads to sloppy argumentation, which drives me nuts. This is especially true of Senate Democrats who are arguing that they are somehow protecting checks and balances by protecting the filibuster–as argued below, this is simply not the case.

Also, the Republican side of the aisle is so convinced of its rightness (no pun intended) that some of that camp seem to think that anything they don’t like about the process is unconstitutional. This is not the case either.

Certainly in the most general of senses, it is clear that most people have a fuzzy view of some of the basics foundational concepts of our government.

Generically there is an ongoing conflation of two related, but distinct concepts (separation of powers and checks and balances) and a fundamental misunderstanding of Senate procedure whereby the issue of ending debate (the filibuster/cloture issue) is conflated with the actual vote on the nominees (these are distinct parts of the process).

As such, I provide the following (some of which is redundant vis-à-vis other posts I have written in the last several days, but c’est la vie):

Separation of Powers

Definition: This refers to the segmentation of governmental power into a law-making institution (i.e., legislative–the Congress), a law-enforcing institution (i.e, executive–the Presidency and the executive bureaucracy) and a law-adjudicating institution (i.e., judicial–the federal court system).

The logic, which derives from the writings of Montesquieu (and others), states that the concentration of all of these powers in the hands of one individual, or some group of individuals, would result in tyranny. (Of course, these powers are fused in parliamentary systems, such as that of Great Britain sans tyrannical results). From The Spirit of Laws, Book 11:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Significance to the Current Debate: It is via separation of powers that the courts gain their basic independence from the influence of the other two branches. More to the point, it is because of separation of powers that the fight over the filibuster rule is one that is wholly contained in the Senate, and strictly speaking has nothing to do with the President at the present time. The President has already done his part–he has made the nominations. He may certainly use the bully pulpit to argue for his nominees, but in terms of the constitutional process, it is wholly vested in the hands of the Senate at the moment.

Yes, philosophically the issue of majority party control of the White House and Senate are of issue, but constitutionally it is not.

Checks and Balances:

Definition: The principle that absolute separation of powers would lead to each branch ignoring the others and to attempts by each branch to accrue power to itself at the expense of the others.
The discussion of checks and balances leads me to my favorite passage from Federalist 51:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

And note, the branches were not considered by Madison to be co-equal (because they aren’t):

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. (Federalist 51)

Indeed, if we want to be originalists here, if there was a standoff between the President and the Senate, the Founders wouldn’t get all upset about it, as it would be considered the purview of the Senate to check the President. Again: the Senate has the right to reject the President’s nominees. The problem here is not one, however, of Senate recalcitrance, but one of the minority behaving in a belligerently obstructionist fashion. As such, the solution is for the majority to change the rules–not to argue that he Democrats are behaving unconstitutionally, which they are not.

Significance to the Current Debate: The Democrats are simply wrong (disingenuous?) to assert that the protection of the filibuster is inherent to protecting checks and balances. The concept of checks and balances has nothing to do with balancing and checking the power of the majority by the minority, but with the right of one of the branches to check and balance another. As such, in this case the focus should solely be on the internal working of the Senate, as granted to the chamber by the constitution.

To my Republican friends who want to argue that the constitution requires all procedures related to confirmation to be by a simple majority vote: this is simply not the case. There is nothing unconstitutional about requiring a super-majority to cut off debate—indeed, this has been the case for essentially the entire history of the Senate. The problem here is that the minority has sought to abuse this power, and the issue of changes the rules has emerged to combat that abuse.

There is nothing in the constitution that would preclude, for example, unanimous consent to end debate—if the majority of the chamber had agreed to such a rule. Indeed, that is the way it worked during the 19th Century in the Senate.

Filibuster:

Definition: The ability to continue debate. The basic definition boils down to the fact that as long as debate is not closed, then a vote cannot be taken. This is a wholly procedural question that is governed by Article I, Section 5, which allows the chamber to set its own internal rules. This is not, strictly speaking, about a confirmation vote. Rather it is the gateway to such a vote.

Significance to the Current Debate: The filibuster has moved from a talk-a-thon to a procedural tactic. The practical upshot is that a minority of 41 can block anything that is susceptible to a filibuster. It is worth noting that there are exceptions in the Senate rules to what can be filibustered (hence, the idea of passing a rule to bar filibusters in a particular situation is not without precedence).

The real significance of the situation is that while the Democrats are engaged in a filibuster in the procedural sense, the one thing they aren’t doing any actual debate on the merits of specific candidates.

Cloture:

DefinitionThe number of votes needed to end debate. The current number is 60, it used to be 67 (changed in 1979). During the 19th century it required unanimous consent.

Significance to the Current Debate: The Republicans hold 55 seats and have been unable to peal off 5 additional votes from the Democrats to invoke cloture and move to an actual vote, which only requires 51 to confirm the nominee.

The Democrats are being quite hypocritial in this matter, given that it was under their leadership that several changes were made to the filibuster rule in the first place.