Motion for cloture

May 23, 2005, midnight | By Armin Rosen | 19 years ago

The need for compromise on judicial filibusters

I think our Senators need to be reminded of just how little the debate over the "nuclear option" matters. The filibustering of judicial nominees is not the gross abuse of power that the Republicans cast it as, nor is its banning a threat to the very pillars of democracy as Democrats have maintained. Aside from extreme partisanship there are few conflicting or overarching principles in play, since this is, fundamentally, a disagreement on procedure.

But to be fair, the only thing more absurd than the crippling of the legislative branch of our government by a disagreement on a matter of procedure is the crippling of the legislative branch of our government by a partisan filibuster of qualified judges who have received favorable ratings from the nonpartisan American Bar Association.

However, this debate isn't totally uninteresting. There's an intriguing philosophical undercurrent here: the clash between the letter of the law and the spirit of the law. Or, in plainer terms, the disagreement between what the law says and what the law actually means.

Republicans are arguing that the letter of the law, in this case Article 1, Section 5 of the United States Constitution, allows for each house of congress to "determine the rules of its proceedings," and that that law acts as an allowance for needed institutional change. They have a point here. Since the filibuster of presidential judicial nominees is practically unprecedented, the Democratic effort is little more than obstructionism for the sake of obstructionism. And since this obstruction will come at the expense of both taxpayer dollars and the consideration of more pressing and far-reaching matters like healthcare and Social Security, it is in everybody's interest to have it removed. One wonders if such prudence was behind then-Senate Majority Leader Robert Byrd's (a Democrat) decrease of the cloture requirement from a 2/3rds to 3/5ths majority during the 1970s.

And the Republicans are also arguing that the filibuster of judicial nominees violates the letter of the Senate's constitutional requirement (Article 2 section 2 for the curious) to provide "Advice and Consent" to the president through the rejection or confirmation of presidential nominees. A filibuster has a rather simple short-term goal: the prevention of an unfavorable vote. And the absence of a vote, some would argue, precludes consent without representing a distinct lack of consent. Now I'm no constitutional scholar, but at this point I think it's debatable whether or not the Senate's duty of Advice and Consent is really being exercised.

The Democrats, in contrast, are arguing that the spirit of the Constitution is one of equity; that it recognizes and establishes certain minority rights that are essential to effective representative government, and that, if eliminated, would represent a dangerous and undue arrogation of power by the majority. To quote Montana Senator Max Baucus, "this is how democracy ends."

Let's not get carried away, Senator Baucus. This is a miniscule procedural point concerning an almost unprecedented set of circumstances. Democracy will be in great shape irrespective of the upkeep of the judicial filibuster, the elimination of which would, incidentally, expedite judicial nominations favorable to Democrats as well as Republicans.

So what does the sprit-letter conflict mean in this case, exactly? A Democratic victory would solidify the viability of the judicial filibuster, and, in the process, determine that a formal vote is unnecessary for Advice and Consent. The looming threat of a filibuster would dissuade future chief executives from making controversial judicial nominations. It might also cause them to nominate candidates whose views are either dead center or to a greater or lesser degree in line with that of the minority, since the minority would decide whether or not a vote takes place — in a way its own "nuclear option."

Interestingly, a Republican victory would have fewer long-term implications. It would certainly be a boon for the Executive Branch. But as it is, the executive gets its way more often than not. As Democratic Senator Ben Nelson (NE) pointed out during floor debate, the Senate has already confirmed over 200 judicial nominees during Bush's presidency.

And as Republican Senator Rick Santorum (PA) noted, the majority party usually kills unqualified nominees in committee anyway. As it is, the absence or presence of the judicial filibuster matters under only very limited circumstances.

Which convinces me of the pointlessness of this controversy. Were our economy solid, our tax code reformed, our foreign policy goals met and Social Security rescued I'd be more than amenable to a protracted and microcosmic debate on the letter and spirit of Senatorial procedure. But they aren't, and I'm not.

So if you're reading this, Senators Frist and Reid: it's time for a compromise. The so called "six and six" compromise, whereby six moderate Republicans will vote against the "nuclear option" in exchange for six moderate Democrats voting for cloture, isn't a terrible one. Another possible, though I believe undesirable, compromise would be for the Democrats to agree not to filibuster the present candidates in exchange for the possibility of filibustering a Supreme Court nominee. Both compromises satisfy Advice and Consent. And both could help the Senate avoid one of the most embarrassing and most frivolous debates in its recent history.

Armin Rosen. Armin is a Seeeeenyor in the Communication Arts Program. "I am a journalist and, under the modern journalist's code of Olympian objectivity (and total purity of motive), I am absolved of responsibility. We journalists don't have to step on roaches. All we have to do … More »

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