An Idiot’s Guide to Unpacking the Courts

Abortion Cases in Court Helped Tilt Democrats Against the Filibuster.” This New York Times front-page story was a press release rather than an investigative report. Through it, the Obama Administration and the Democratic Party cast aside their pretense that they had turned the Senate into a purely partisan body for any public-spirited reason, and broadcast to their most faithful supporters a powerful message: We are packing the Federal Courts for you! Democrat constituencies whose daily bread comes from partisan regulations – the alternative energy industry, for example – knew that already. But less sentient parts of the “base” needed to have it spelled out that the Party uses absolutely all its powers to serve them.

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The Progressive Decline of the Senate

You would have thought we were watching a Mr. Smith Goes to Washington ending with the corrupt Senator shooting filibustering good guy Jimmy Stewart.

Whatever good or ill the filibluster has produced in years past, reliance on this and other institutional devices kept conservatives from making more fundamental arguments concerning the Senate’s purpose. Fundamental, philosophic issues were suppressed in favor of “process.” Thus in the leadership slots we get American variants of Anthony Trollope’s parliamentarian Timothy Beeswax when we need men with virtues beyond cunning.

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More on the New Filibuster “Rule”

Will Baude has an interesting post on various aspects of what the Senate Democrats did, which is well worth reading. One question he asks is whether the Senate Democrats passed a new rule or simply refused to apply the existing rule, perhaps creating a precedent. Another question involves the power of the majority of the Senate to make decisions, without being bound by existing Senate rules.

The constitutional problem is that the current Senate rules purport to stop a majority from changing the rules, by requiring a 2/3 majority to get cloture on a proposal to change the rules. It is the combination of that 2/3 requirement and the 60-vote cloture requirement that is unconstitutional. And it is not clear to me, in the case of such an unconstitutional combination, which rule is supposed to give way. One possibility is that the constitutional remedy is to jettison the 2/3 rule-amending requirement, and then use that power to formally amend the filibuster (if desired), not just to ignore the filibuster rule.

This is an interesting question, and I think there are arguments on both sides of whether the Senate majority has to change the 60 vote cloture rule or whether it can simply ignore the existing rule.

Ed Whelan also has three interesting posts on the filibuster, written from the perspective of a Republican who believes the Senate Democrats have been very hypocritical. Whelan notes that he has long favored eliminating the filibuster on judicial nominees, which is true. I first met Whelan when he I debated whether the appointment of Supreme Court justices should be subject to a supermajority rule.

How I Learned to Stop Worrying and Love the Nuclear Option

The Senate occupies a unique place as the fulcrum of the constitutional order. The filibuster does not occupy a unique place as the fulcrum of the Senate. The course the body took Thursday—which limited the use of the device in presidential nominations—will be added to the growing list of precedents to be avenged in due course, but the filibuster should not be inflated to quasi-constitutional status it does not, and probably ought not, enjoy.

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The Filibuster: A (Reluctant) Madisonian Case

As the Senate filibuster braces to receive what may be a mortal wound via the invocation of the “nuclear option” on executive nominees, there are at least 413 reasons to wish the dilatory tactic ill—and one compelling constitutional reason to keep it.  The former is the number of times cloture motions to end debate have been filed since 2007 alone, a measure of the collapse of comity in an institution that used to run on that quality.  The latter is that the filibuster may—or at least can—now function as a constitutional prosthetic, performing the seasoning function the Senate was initially intended to fulfill but which the frenzied pace of modern life has subsumed.

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Friday Roundup, March 8th

  • This month’s Liberty Forum features a lead essay by the sage of Malibu, Gordon Lloyd, on the constitutional liberty of the Antifederalists. Excellent responses from Adam Tate and Ken Masugi follow and greatly add to the discussion. That’s right, capital ‘A’ because as Lloyd argues they are coherent and relevant. We need their wisdom now more than ever. “The constitutional impediments to the completion of the Progressive national democracy project actually rest on promoting the Antifederalist rather than the Federalist features of the Constitution and Bill of Rights.” Lloyd disentangles our understanding of the Antifederalists from the scholarship on the Antifederalists that tends to make it impossible to understand them in their original voice, relegates them to an insignificant past, or disputes the very credibility of their arguments. Lloyd argues:

When we hear the claim that our representatives operate independently of the people, and that Congress fails to represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of the potentiality of the representation system. When we hear that the federal government has spawned a vast and unresponsive administrative bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the Antifederalists concerning consolidated government.  They warn that, in effect, executive orders, executive privileges, and executive agreements will create the “Imperial Presidency.” And they warn that an activist and independent judiciary will undermine the deliberate sense of the majority.

To many Americans, at least, his patriotic nationalism, his efforts to establish a system of national parks, and his assertion of American exceptionalism qualified him for inclusion on Mount Rushmore. . . . However, of the many studies to appear in the last fifteen years, none has made a thorough assessment of his political thought and action as it related to those he claimed to admire most: the founding generation, especially the authors of The Federalist and Abraham Lincoln – who Roosevelt cited early and often in his political career.

Fortunately, Jean Yarbrough’s fine study of Roosevelt’s political thought and career has remedied that.  Though by her own admission this is not an “intellectual biography,” she has nonetheless skillfully woven together biographical sketches from Roosevelt’s life that . . . suggest the extent to which he in fact strayed from their understanding of limited, republican government.  In the end, Yarbrough concludes, Roosevelt might lay claim to his spot on Mount Rushmore by virtue of his “fighting spirit and love of his country” . . . but not for his faithfulness to the principles of the founding

  • Anthony de Jasay at Econ Lib writes about a tri-angled Europe, muddling through, with no discernible purpose or unifying principle.  I’m sure it will work out brilliantly.
  • In “The Perils of Neutrality” Bruce Frohnen’s University Bookman essay considers the continued viability of the liberal project.
  • Turning 30 today, Ronald Reagan’s ‘Evil Empire‘ speech. Paul Kengor has a short essay at the American Spectator that remembers the speech well. So this has always been my favorite line:

[B]eware the temptation of pride — the temptation of blithely declaring yourselves above it all and label both sides equally at fault, to ignore the facts of history and the aggressive impulses of an evil empire, to simply call the arms race a giant misunderstanding and thereby remove yourself from the struggle between right and wrong and good and evil.

Natan Sharansky, then a prisoner in the Gulag, recalls that after learning about Reagan’s words he was ecstatic because “someone had finally spoken the truth” about the USSR. “Finally, the leader of the free world had spoken the truth — a truth that burned inside the heart of each and every one of us.”

  • Legal Theory Blog points us to Adam Winkler’s short essay on the constitutionality of the filibuster.
  • Creative Destruction: Speaking of which, Rand Paul breathes fire against a regnant bipartisan consensus. Apparently, he has also planted the seeds for a new one.