Wednesday, May 11, 2005
Where Are All the Institutionalists?
I fully intended to post this thought this morning, but work got the best of me yet again. I want to focus on the growing debate regarding judicial nominations. We at this blog haven't posted much on this subject in a while. Paul of course is involved with the Confirm Them project, so he has a built in excuse, but I think the rest of us believe that each has taken an unwaivering position one way or the other. That being said, given all of the news regarding the immanency of the “nuclear” or “constitutional” option regarding judicial appointments, one has to wonder what has happened to the interest in the institution of the United States Senate.
It should come as no surprise to the readers of this blog that while I have been opposed to the filibuster of judicial nominees on the Senate floor, I don’t support eliminating the filibuster either. How is it, you ask that one can with a straight face say that the filibuster is wrong yet not support taking steps to correct the problem? To answer that question, I have to explain why I am opposed to the use of the filibuster. My opposition is not because I don’t believe in the use of filibusters, because I do, nor is it because I feel that the use of the filibuster is unconstitutional, because, in my opinion, it isn’t (or at least I have yet to read an argument that navigates around Art. I, Section 5, clause 2, which states that “[e]ach House may determine the rules of its proceedings.” For what it’s worth, I’ll gladly read anything that people link to in the comments, but I’ve not encountered anything that convinces me that the filibuster itself, regardless of how it is used, is not encompassed within the terms of the Constitution.), nor is it because I support the President’s nominees, because I don’t. Bottom line is that my opposition to the filibuster is, and has been, based on my belief that its use in this way is simply bad politics.
Given that my opposition is neither philosophical, legal, or constitutional, but political, it seems to me that a political compromise is the best way to proceed. So why not the “nuclear/constitutional” option? Simply put, in my opinion, it’s bad politics as well. Furthermore, in my opinion, such a rules change weakens the institution of the United States Senate. To amend or alter the rules and traditions of the Senate after 200+ years in a way that eliminates and restricts the opportunity to endless debate would render the Senate a purely majoritarian body, and well we already have one of those, its called the House of Representatives. Consistent with the founders intent, it is the House that was designed to be directly accountable to the people. Thus, they are directly elected, stand before the people every 2 years, and have adopted a set of internal rules and regulations that emulate its direct democracy and majoritarian principles. Neither the Senate, nor the Presidency was designed to be a majoritarian institution. The Senate originally had its members appointed by the State legislatures, not directly elected by the people. The President, to this day, is not directly elected by the people, but rather is still officially elected through the Electoral College process. It was this anti-majoritarian body that was given the constitutional power of advice and consent, in part because they were considered to be less politically influenced, as only 1/3 of their membership is to be replaced at any interval.
I have no argument with the position taken by many of those opposed to the action of the Senate that the Senate has no role in nominating people for judicial positions, that role is clearly assigned by the Constitution to the President. That being said, the Senate has a constitutional role, namely to render advice and consent. To remove the filibuster would, in my opinion, render the advice and consent provision to be nothing more than a rubber stamp and would remove any constitutional significance or importance that it might have. While I think that advice and consent should be offered by and up-or-down vote on the Senate floor, I don’t think that changing the rules strengthens either the President, the Senate, or the judiciary.
What I think is lacking from the current debate is any sense of the institution of the Senate. The win at all costs, beat the opposing party mentality that is dominating the media accounts and blogosphere right now, will ultimately be the most damaging aspect of this entire ordeal, regardless of which side, Republican or Democrat, eventually prevails. I don’t know how to rectify the lack of institutional interests, but I believe that is in part what is driving the speculation that “moderate” Senators like Trent Lott (R-Miss.) and Ben Nelson (D-Fla) will try to reach a political compromise. Senator Lott is not a political moderate by any stretch, but what he is displaying is not a moderate political tone, rather it is an institutional interest that is needed right now for everyone’s sake and honestly ought to be coming from the Senate leaders on both sides. I believe that there is a way to get past this impasse without doing lasting damage to any of our political institutions. I believe that there is a way to protect the President’s nomination prerogative, the Senate’s advice and consent role, and the right to filibuster any and all actions brought to the Senate floor. I only hope that in the coming days and weeks that cooler heads prevail and those on both sides of the political divide remember that the institutions should always be placed above partisan politics. More than the judicial philosophy of the nation is at risk, the very political institutions that has made this the most successful republic in the history of the world are endangered and need to be protected, even if it means paying a short-term political price.
It should come as no surprise to the readers of this blog that while I have been opposed to the filibuster of judicial nominees on the Senate floor, I don’t support eliminating the filibuster either. How is it, you ask that one can with a straight face say that the filibuster is wrong yet not support taking steps to correct the problem? To answer that question, I have to explain why I am opposed to the use of the filibuster. My opposition is not because I don’t believe in the use of filibusters, because I do, nor is it because I feel that the use of the filibuster is unconstitutional, because, in my opinion, it isn’t (or at least I have yet to read an argument that navigates around Art. I, Section 5, clause 2, which states that “[e]ach House may determine the rules of its proceedings.” For what it’s worth, I’ll gladly read anything that people link to in the comments, but I’ve not encountered anything that convinces me that the filibuster itself, regardless of how it is used, is not encompassed within the terms of the Constitution.), nor is it because I support the President’s nominees, because I don’t. Bottom line is that my opposition to the filibuster is, and has been, based on my belief that its use in this way is simply bad politics.
Given that my opposition is neither philosophical, legal, or constitutional, but political, it seems to me that a political compromise is the best way to proceed. So why not the “nuclear/constitutional” option? Simply put, in my opinion, it’s bad politics as well. Furthermore, in my opinion, such a rules change weakens the institution of the United States Senate. To amend or alter the rules and traditions of the Senate after 200+ years in a way that eliminates and restricts the opportunity to endless debate would render the Senate a purely majoritarian body, and well we already have one of those, its called the House of Representatives. Consistent with the founders intent, it is the House that was designed to be directly accountable to the people. Thus, they are directly elected, stand before the people every 2 years, and have adopted a set of internal rules and regulations that emulate its direct democracy and majoritarian principles. Neither the Senate, nor the Presidency was designed to be a majoritarian institution. The Senate originally had its members appointed by the State legislatures, not directly elected by the people. The President, to this day, is not directly elected by the people, but rather is still officially elected through the Electoral College process. It was this anti-majoritarian body that was given the constitutional power of advice and consent, in part because they were considered to be less politically influenced, as only 1/3 of their membership is to be replaced at any interval.
I have no argument with the position taken by many of those opposed to the action of the Senate that the Senate has no role in nominating people for judicial positions, that role is clearly assigned by the Constitution to the President. That being said, the Senate has a constitutional role, namely to render advice and consent. To remove the filibuster would, in my opinion, render the advice and consent provision to be nothing more than a rubber stamp and would remove any constitutional significance or importance that it might have. While I think that advice and consent should be offered by and up-or-down vote on the Senate floor, I don’t think that changing the rules strengthens either the President, the Senate, or the judiciary.
What I think is lacking from the current debate is any sense of the institution of the Senate. The win at all costs, beat the opposing party mentality that is dominating the media accounts and blogosphere right now, will ultimately be the most damaging aspect of this entire ordeal, regardless of which side, Republican or Democrat, eventually prevails. I don’t know how to rectify the lack of institutional interests, but I believe that is in part what is driving the speculation that “moderate” Senators like Trent Lott (R-Miss.) and Ben Nelson (D-Fla) will try to reach a political compromise. Senator Lott is not a political moderate by any stretch, but what he is displaying is not a moderate political tone, rather it is an institutional interest that is needed right now for everyone’s sake and honestly ought to be coming from the Senate leaders on both sides. I believe that there is a way to get past this impasse without doing lasting damage to any of our political institutions. I believe that there is a way to protect the President’s nomination prerogative, the Senate’s advice and consent role, and the right to filibuster any and all actions brought to the Senate floor. I only hope that in the coming days and weeks that cooler heads prevail and those on both sides of the political divide remember that the institutions should always be placed above partisan politics. More than the judicial philosophy of the nation is at risk, the very political institutions that has made this the most successful republic in the history of the world are endangered and need to be protected, even if it means paying a short-term political price.
# posted by mouldfan : 7:58 PM
