Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, May 25, 2005

Why The Filibuster Matters and Republican Rhetoric

In a recent comment, US West wondered if any of this fuss over the filibuster really matters. That reminded me that I've been meaning to post something about just why it does matter for a while but haven't gotten around to it.

US West's question is also related to something that's been annoying about the Republican rhetoric about "up or down votes." A filibuster is an up or down vote, its just that its a way to make the voting requirement 3/5 instead of 1/2. All this talk about the Democrats preventing an "up or down vote" is smoke screen. Preventing votes is what the Republicans did by killing nominees in committee. What the Democrats were doing is forcing a voting rule of 3/5 instead of 1/2. It's still a vote it just requires more votes...votes Bush and Frist couldn't get.

So why does this matter? If the voting threshold for a judicial nominee is 3/5, the President must appoint someone who will at least get the indifferent support of a half a dozen Democrats. If the voting rule is 1/2, the President doesn't even need every Republican. This is especially important when the median Senate Democrat and the median Senate Republican are very polarized ideologically. If the President can turn a judicial nomination into a negotiation between himself and Bill Frist (R-TN) or even Allen (R-VA), you will see much different nominees than if it were a negotiation between Bush and Byrd (D-WV) or even Specter (R-PA).

Priscilla Owen was confirmed today as part of a deal struck by 7 Democrats and 7 Republicans whereby, Democrats get to keep the filibuster so long as they promise not to use it except under "extraordinary" circumstances. The vote was 56 Yea, 43 Nay and 1 Not Voting. Owen would not have passed under 3/5. Two Democrats, Byrd (D-WV) and Landrieu (D-LA), broke with their party to vote for Owen. No Republicans voted against Owen. This vote result may shed light on why the 7 Democrats agreed to the deal in the first place. They may have seen that their support for defending the filibuster at least with regard to Owen was shakey.

Another thing that annoys me about the Republican rhetoric on this issue is the insistence that the filibuster is a "tyranny of the minority." They will be shown to be the cynical liars that they are soon. The House of Representatives passed a bill authorizing funding for embryonic stem cell research by a vote of 238 to 194. But President Bush says he'll veto the bill if it passes the Senate. How does this comply with the new found Republican admiration for unrestricted majority rule? The Presidential veto, like the Senate filibuster rule, and the bicameral Congress itself, are all designed to give minority interests ways to block the rule of the majority!

Yet again, we see the Republicans counting on the apathy and ignorance of the population to let them get away with contradicting themselves within a 72 hour time frame! Democrats are allowing this to happen by not jumping up and down like lunatics pointing at Frist and Bush and saying how they are contradicting their own principles for the sake of political convenience. I suspect the reason the Democrats are not doing that is because they believe that their political opponents have a right to use the institutions to protect their own interests - an opinion Republicans unfortunately do not share.


Dr. Strangelove said...

No one who believes that the Bible trumps the Constitution is fit to be a Federal Judge. Yes, there are many caveats regarding specific interpretations of the Bible and the Constitution that I could add to make that statement more precise, but the point is simple: one cannot serve two masters. This is why so-called "fundamentalist Christians" are inherently unqualified to be American judges--not because they have certain religious convictions, but because they cannot set them aside to be impartial arbiters of the law.

That should be a litmus test for federal appointments for the Democrats. Surely an attempt to appoint someone to be a Supreme Court Justice who does not hold the U.S. Constitution to be the supreme law of the land would constitute "extraordinary circumstances."

Dr. Strangelove said...

The picture of Democratic Senators, "jumping up and down like lunatics pointing at Frist and Bush," is a great one. Not terribly flattering, perhaps, but hilarious. I think the Republicans would be flabbegasted and have no idea what to do if that actually happened... :-)

US West said...
This comment has been removed by a blog administrator.
US West said...

Good point, RBR about the 3/5 vs. 1/2. The sad part about this whole debate is that it was really about politics and winning a power struggle, not about judges or the filibuster. As John Kerry pointed out, 95% of Bush's nominees have been approved. Also, a long tradition in the Senate has been that the President's nominee should be approved by the senators from the nominee's home state. This has always been the case. Apparently, not anymore. Neither Boxer of Feinstein approved of this appointment.

While Republicans are whining about the tyranny of the minority, they might want to consider the dangers of the tyranny of the majority. They might also want to consider that their majority is slim considering that we live in a 50/50 nation, or something close to that.

I agree with Dr.SL that these judges are not suitable because they aren't impartial. The conservatives claim that activist(i.e. liberal) judges legislate from the bench. This may well be true. But activist judges come in all stripes, including Republican. Fundamentalist Christians are just as activist as liberals. The litmus test for any judge should be impartiality, period. It is sort of required for the job. Politicizing the bench defeats the purpose of the judiciary as the Founders intended.

US West said...

Oh, and I should mention that there is a difference between being activist (interpreting the Constitution with an eye to it applicability to the modern world) and being impartial. You can be impartial and a strict constructionist. My last post seemed to miss this subtlety.

My point on mentioning the 95% was that Republicans really didn't have anything to complain about in terms of judges. And I ask, why are they so attached to these? Don't say it is because the President wants them. These are lifetime appointments. And I am convinced that it is purely political.

Anonymous said...

Dr. Strangelove,

My cousins and I play football every year at Thanksgiving (yes, very Americana). One year the team I was one (there are enough of us to make two teams full of cousins and 1st-cousins-once-removed etc) decided on a trick play. When the ball was snapped, everyone except for the QB and one reciever on our team dove face down onto the ground! The other team was so flabberghasted that they didn't notice the the reciever wide open in the endzone catching the winning TD! I tell you it was a thing of beauty! Pitty I had a mouth full of November Ohio mud when it happened. 

// posted by Raised By Republicans

Anonymous said...

I could not agree more about the unfitness of a fundamentalist of any religion, Christian, Jewish, or Muslim, for US office. Because the US constitution forbids making any religious test necessary for office, blocking these people must be done the right way: by exposing them for their utter inability to honestly and faithfully follow the constitution where it conflicts with their dishonest, simplistic, literalist misinterpretations of scripture to which they doggedly, idiotically adhere. Because they reject any idea of multiculturalism or moral relativism - because, in the end, they believe that they have immediate and direct access to REVEALED TRUTH (that all others are wrong and deserve to be treated as such) - they are unfit for office in any democratic republic.

The central pact of our government is this: that the US government will give equal dignity and respect to all the groups of people that live here. This isn't secular or a war against people of faith. I am a man of faith. This is a war against those whose faith is so incompatible with that central pact that they are capable only of being the OBJECTS of toleration, not the guardians and dispensers of it. 

// posted by LTG

Anonymous said...

Well said LTG.

I can't think of anyway of preventing such people from being appointed to the courts except by partisan competition. And so I am a yellow dog Democrat.


// posted by Raised By Republicans