Filibusters Will Not Prevent Trump from Filling the Scalia Seat

There is much to be said in favor of a supermajority rule for confirming Supreme Court Justices. As Mike Rappaport and I argue in the Judicial Filibuster, the Median Senator and the Countermajoritarian Difficulty, the result of such a rule will be more moderate justices, less likely to go to any extremes. At a more theoretical level, a supermajority rule will temper the countermajoritarian difficulty — the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches.   Judicial review under this confirmation rule would be more likely to impose the long-term limitations on popular government that most people themselves desire.

The filibuster, however, is a weak supermajority rule, because a partisan majority of  Senators can change it any time through the so-called nuclear option. Despite my preference for a supermajority confirmation rule, the filibuster is unlikely to survive, if Senator Chuck Schumer has implied, the Democrats are inclined to filibuster Trump’s Supreme Court nominees. Noah Feldman is thus wrong in claiming that it is plausible that the Supreme Court will continue to operate with only eight members.

First, the filibuster for Supreme Court confirmations has been gravely weakened by the previous Democratic controlled Senate’s elimination of the filibuster for other nominations, both for the executive branch and for the lower federal courts.

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Art of the Doge?

Doge And Lion Venice

A few years ago, my beloved wife finally persuaded me to accompany her on a trip to Italy. It proved to be so sublime that tears come to my eyes whenever I reminisce about the history, culture, art, scenery, cuisine, wine, and very mood I experienced there. Italy was like a hint of heaven or a pilgrimage to the cradle of our civilization.

Perhaps what amazed me most was how eerily familiar I found one place in particular: the Most Serene Republic of Venice. For in the distant mirror of that medieval commercial republic I discerned unmistakable reflections of the values, institutions, and civil religion of modern Americans. From its founding in the 8th century to its abolition (by wicked Napoleon) a thousand years later, the Venetian Republic was officially Catholic. But its real religion was a prosperity gospel under the patronage of St. Mark, the Winged Lion who blessed the fleets and commerce of the maritime empire and sustained its power and wealth.

The cathedral of San Marco, font of spiritual authority, and the palace of the doge, font of civilian authority, are literally joined at the hip in Venice. The republic was governed by its business elites through an elaborate array of councils, but at the top stood the doge, who was elected for life. He served as high priest of the civil religion and established the template or operational code of Venetian administration, trade, diplomacy, and war.

Did Americans choose a sort of a doge in 2016?

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Classical Liberal Resolutions for 2017: Part I

New Year concept - cheering crowd and fireworks

It has been a disorienting year for classical liberals. The presidential candidate of the more classically liberal of the two major parties took some positions wildly at odds with classical liberalism, like opposition to freer trade, enthusiasm for government intervention in corporate decision making, and hostility to some civil liberties.   He won the Presidency in part because of some of those positions.

But then the same candidate announced the nomination of  a substantially better cabinet from the classical liberal perspective than those Hillary Clinton would have appointed. It is through these generally decent appointees that he must largely govern, not by twitter.

He also shows every sign of following through on his commitment to appointing a justice sympathetic to enforcing the constitution as written and thus better implementing a charter broadly reflecting the classical liberalism born in the eighteenth and nineteenth century, although not of modern libertarianism. Once again the relative success of classical liberalism is made even clearer if potential nominees are not evaluated against a standard of utopian perfection, but compared to the result-oriented justices(s) that Hillary Clinton promised to appoint.

Here then are a few classical liberal resolutions for this strange era.

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The Substantial Power of President Trump’s Appointees

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During the Restoration, Charles II traded jibes with his courtiers. None was bolder than the Earl of Rochester who recited this poem in the monarch’s presence:

We have a pretty witty king,
Whose word no man relies on;
He never said a foolish thing,
Nor ever did a wise one.

Charles wittily replied that the last two lines were very true: his words were his own, but his actions were those of his ministers.

Could Donald Trump turn out to be the reverse of Charles II?  Many of his tweets have hardly been wise, but his appointments to the Cabinet have been largely good ones for classical liberalism and in any event almost universally men and women of substance. Just read this lovely essay written by a Democrat about Rex Tillerson, Trump’s nominee for Secretary of State, and his service as a juror. You will have the measure of a man who has the measure of the world.

And these appointments have enormous importance for government because the President, like Charles II,  must govern largely through his cabinet secretaries and agency heads rather than by Twitter.

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Prospects for Constitutionalism

The Assembly Room in Independence Hall

What are the prospects for constitutionalism and the rule of law under President Donald Trump? 

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Democracy Is Endangered More by the Size of Government Than by Republicans

deutsche Gesetze

In an op-ed in the New York Times, two Harvard political scientist professors, Steven Levitsky and Daniel Ziblatt, have sounded the alarm about democracy in America. It is in danger they say mostly because democratic institutions are no longer backed up by the “guardrails of democracy”—deep norms of “partisan self-restraint and fair play.” Sadly, their analysis of the decline of these norms is itself both partisan and shallow. It is partisan because they note only Republican breaches of such norms, when Democrats have engaged in breaches as well. Its shallowness in turn comes from their partisanship. They blame a particular political party rather changes in the nature of our polity, like the growth in the power of government and decline of federalism.

The partisanship of Levitsky and Ziblatt is striking. They claim that one of the informal norms is that legislative votes about matters of “extraordinary importance,” like impeachments, be bipartisan and Clinton’s impeachment by Republicans was not. But the only previous impeachment of the President—that of Andrew Johnson—was also a party-line vote. The norm that creating new entitlements—also actions of extraordinary importance—should be bipartisan, however, is a much more established one: Social Security, Medicare and Medicaid all had bipartisan support. Yet President Obama enacted the Affordable Care Act without the support of even one moderate Republican such as Senator Susan Collins of Maine.

These Harvard professors decry the failure to vote on Merrick Garland, which they characterize in hyperbolic terms as “stealing” a Supreme Court seat.

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Looking at Trump from Outside the Bubble

Donald Trump Hotel Letter T Luggage Cart Wagon Closeup Detail No

Everyone seems to be sharing their reflections on the election of Donald Trump as President (for example, here, here, and here), prompting me to weigh in with some of my own.

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The New Nationalism

Europe map

Something strange has been happening all year in Western politics. Both in the United States and Europe, events dismissed as unthinkable have occurred again and again. In June, Britons voted to leave the European Union. In November, Americans elected Donald Trump to be President. In opinion polls throughout 2016, Euroskeptic parties like Lega Nord and the Five Star Movement in Italy and the National Front in France, once derided as fringe movements, have shown continuing appeal. In fact, in Italy, Lega Nord and the Five Star Movement just combined to defeat a constitutional referendum championed by Prime Minister Matteo Renzi, leading Renzi to resign.

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Energy in the Executive

A section of the Trans-Alaska oil pipeline

Donald Trump’s extraordinary election has upended established expectations for the political agenda in every area, and nowhere is that more true than with climate and energy policy. Where will Trump and his team come down on climate? There is fevered speculation across the spectrum, with predictions ranging from Armageddon to salvation, but the truth is that no one knows how things will shake out in the end—perhaps not even the President-elect.

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The Constitutionalism of Crony Capitalism

A Carrier production line

As bad as the economics of the Carrier shakedown may be—and it is entirely unclear in which direction the shaking went down, except to note that a supply of rents tends to create a demand for them—the constitutional politics are far worse.

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