Tuesday, May 24, 2005

Latin Gone Wild!

Of course, it's only after the Senate compromise could I get to these issues, which are now somewhat moot. But, I do have an excuse, I was taking finals and graduating from the University of Cincinnati College of Law over the weekend! So, allow me to late-post this if you will.

I thought this post from the Confirm Them shows just how amusing it is to see conservatives tripping over themselves trying to keep a consistent poker face with the "Big Lie" that judicial fillibusters were unconstitutional. As you'll see, the post concedes that the filibuster "is constitutional, but it is well within the right of the majority party to do away with it as they see fit." But then, the post proceeds to argue that there are meritous claims that the filibuster is unconstitutional. They got it right the first time, and none of their remaining points hold water.

1) The "expressio unius" argument: Here, conservatives cling to the notion that because the Framers specifically only certain matters should receive 2/3 votes that they must have intended majority votes for others. While that may be what the Framers intended, it is not what they required under the U.S. Constitution. With the exception of requiring it to be the domain of the Senate alone, the Framers are utterly silent in the U.S. Constitution as to the intended process for the Senate to exercise its "advise and consent" powers. Instead, the Framers intentionally left that question to be resolved by the Senate's Article I powers to establish its own rules of procedure, which leads me to....

2) The "lex majoris partis" argument: This argument is based on the notion that the core principle of any legislative body is majority rule. Cute. To accept this argument, you have to believe that the filibuster rule derived from nothingness and is a restraint on the majority placed upon it by another party. Apparently, Frist and Dobson never bothered to look to who proposed and approved this nefarious, arm-tying restraint on the GOP majority. I'd advise Frist to look in the mirror to find the culprit, since it's the Majority Leader's responsibility to introduce and have the body enact the standing rules of the Senate. So there is no violation of the lex majoris partis doctrine when it was the majority that created the restraint on itself. And for the record, the rules of the Senate, including the filibuster rule, is approved by a simple majority vote. Indeed as the referenced post on Confirm Them stated, the supermajority requirement is placed only on the procedural aspect of closing debate, not on the actual approval of the nomination.

Furthermore, the actual post makes the weak argument that the fact that the Senate only has 1/3 of its membership up for vote during any election, it forces the new Senate to be bound as a continuing institution to the old rules (unlike the House). Well, the Senate has been in the majority hands for almost the entire time since 1994. Clearly, the entire Senate has been up for election once since the GOP captured the majority, thus meaning they have the ability and right to claim as a new Senate to change the rules and get rid of the filibuster. They've chosen not to. To have the Senate bound by it's prior rules is not, as the post suggests, unconstitutional, but quite the opposite. It was the clear intent of the Framers that the Senate be a slow changing institution, not easily swayed by public passion and sentiment, but a consistent, conservative institution. What Confirm Them calls unconstitutional is the expressed intent of the Framers.

3) The "Abrogated" Legislature Argument: One of the comments on the post argues that when the President fails to do his/her duty to execute passed legislation, the Constitution holds that the legislation becomes law (unless it's within the pocket veto time-frame). The commenter bemoans that there is no counterpart provision for the abrogated Senate when it "fails" to exercise its advise and consent powers. But, the constitution does provide such a remedy, it's called the executive "recess" appointment power. Bush has already used this power in the past with some of the "blocked" nominees. I believe Pickering was one.

If some of the nay-sayers are correct, and the "Filibuster Missle" Crisis has only been deferred, then maybe it's worth considering these points in the future. As I've said, if Frist is genuinely interested in getting rid of the filibuster rule. There is a procedure in the Senate rules to change them as such that he has yet to even hint at attempting (cause he lacks the votes.) Furthermore, because all but the Supreme Court are inferior courts created by statute, the Congress can pass legislation vesting the appointment power in the President alone. See, Another "Constitutional Option:" Get rid of advise and consent.

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