UPDATE: Liu Cloture Fails
This morning I outlined the stakes of today’s seminal cloture vote on Goodwin’s Liu’s nomination to the Ninth Circuit. Well, now we have a result: cloture failed 52-43, with Senator Ben Nelson (D-NE) joining all voting Republicans except Lisa Murkowski (R-AK) against cloture. Three Republicans plus Max Baucus (D-MT) were absent, while Orrin Hatch (R-UT) voted present because of his previous strong position against filibusters.
This is the first judicial nominee filibustered since the Gang of 14 brokered an agreement on President Bush’s nominees in 2005, forestalling then-Senate Majority Leader Bill Frist’s use of the so-called nuclear option (changing Senate rules to eliminate the judicial filibuster). That agreement, to the extent it’s even still valid given the changed composition of the Senate (and with five of the 14 Gang members no longer in the Senate), allowed filibusters only in “extraordinary circumstances,” leaving that term undefined.
And so we may have just have witnessed the re-ignition of the war over judicial nominees. Stay tuned as to whether today’s vote will come to signify the “Water-Liu”—h/t Walter Olson—for one party or another, or for our judiciary.
Is the Senate Broken?
Drawing on a New Yorker article by George Packer, Politico Arena today asks:
Is the Senate broken?
Should the upper chamber operate more like the House, where majority rules?
My response:
Some people believe that the Senate is “broken” when it doesn’t pass new government programs promptly and without extended debate. But we have two houses of Congress for a reason. The Founders expected the House to be subject to momentary passions, and they intended the Senate to be more cautious, prudent, and resistant to “rushing to judgment.” As George Washington supposedly said, “we pour legislation into the senatorial saucer to cool it.” When the Senate deliberates at length, when it resists the pressure of the White House, the House, and even public opinion, it isn’t “broken”; it is fulfilling its intended function.
Of course, it should be noted that when senators in the past two years have had doubts about the health care overhaul and energy taxes, they weren’t resisting public opinion; they were actually reflecting public opinion, while the House acted as a partisan body in defiance of polls.
Of course there are double standards in talking about filibusters and the like, as I pointed out back in 2005:
Both Democrats and Republicans have flip-flopped on the use of the filibuster because the once solidly Democratic Senate now looks to be firmly Republican.
Republicans who once extolled the virtues of divided power and the Senate’s role in slowing down the rush to judgment now demand an end to delays in approving President Bush’s judicial nominees. President Bush says the Democrats’ “obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate’s constitutional responsibility to vote on judicial nominees.”
Democrats who now wax eloquent about a “rubber stamp of dictatorship” replacing “the rights to dissent, to unlimited debate and to freedom of speech” in the Senate not too long ago sought to eliminate the filibuster altogether.
Now Democrats are back in the majority, and both parties have tended to shift their view of the filibuster yet again. In the long run, though, establishmentarians like the New Yorker’s George Packer think that the purpose of government is to pass new laws, regulations, and programs; and they complain when the Senate or any other institution stands in the way of such putative progress. Those of us who prefer liberty, limited government, and federalism appreciate the constitutional and traditional mechanisms that slow down the rush to legislation.
On ObamaCare, Don’t Put Your Faith in the Courts
Now that the Obama health plan is law, more than a dozen states are asserting that Congress has exceeded its Commerce Clause power in imposing a mandate on individuals to purchase health insurance from private companies. No doubt, individual citizens will challenge the individual mandate on their own behalf.
States are also asserting that the threat to withhold all Medicaid payments if the states do not set up health insurance exchanges and enact other regulations amounts to coercion and unconstitutional commandeering of states by the federal government.
No one who opposes ObamaCare should put their faith in the Supreme Court to strike down an act of Congress, no matter how unprecedented and unconstitutional it may be. Nor should those who support ObamaCare be confident that the Supreme Court will uphold these provisions.
Legal challenges cannot take the place of political action. The Court hates to strike down popular legislation, but if the legislation is unpopular, one or both houses of Congress have changed parties and only a filibuster or presidential veto is preventing repeal, then the Court may feel more comfortable upholding the Constitution.
Filibuster Obama Nominees? I’m Shocked!
At Politico Arena today, Clinton’s acting U.S. Solicitor General Walter Dellinger worries that after yesterday’s vote in Massachusetts, Obama’s Supreme Court nominees may be subject to Republican filibusters.
My response:
Walter, my good friend, where were you all during the Bush ’43 years? I recall seeing you often in town, when you weren’t teaching down in Durham. But if I may judge from your Arena concern today that Republican senators, after the late unpleasantry in Massachusetts, may now filibuster an Obama Supreme Court nominee, you must have missed the unprecedented and repeated Democratic filibusters of Bush appellate court nominees over several of those years. Did you forget that after the Democrats took control of the Senate in May 2001, following Jim Jeffords becoming an Independent, eight of Bush’s first eleven May 2001 appellate court nominees had not had so much as a Judiciary Committee hearing as we were coming down to the 2002 elections? And after the Democrats lost control of the Senate in those elections, when they could no longer stall by refusing to hold hearings, they moved to the filibuster — over no fewer than ten nominees. Did you forget that our good friend, the eminently qualified Miguel Estrada, one of Bush’s May 2001 nominees, finally withdrew his name from consideration in September 2003, after 28 months in limbo and six failed cloture votes?
To be sure, those were appellate court nominees, but the principle is the same — and Bush’s Supreme Court nominees escaped a filibuster, let me remind you, only after the “gang of 14″ finally reached a compromise, failing which the “nuclear option” would have brought an end to the unprecedented Democratic filibuster of Bush’s nominees. (I ignore the 1968 Abe Fortas case, which had special circumstances.)
If Republicans were to filibuster an Obama nominee, therefore, instructions for doing so would be readily at hand. I’m not suggesting they do so, however. The filibuster is, as you know, an extra-constitutional procedure, with something of a checkered history. For better or worse, it has served as an additional check on the passions of the lower chamber, but its use for executive nominations, as distinct from legislation, raises difficult separation-of-powers questions, which are your main concern, I’m sure.
Scott Brown and the Future Supreme Court Vacancy
Josh Blackman and Lyle Denniston offer some thoughts on the effect of Scott Brown’s Massachusetts earthquake on the looming retirement of — and the nomination of a replacement for — Justice John Paul Stevens. Josh and Lyle both latch onto the idea that Brown’s providing the 41st vote to sustain a potential Republican filibuster could cause President Obama to nominate someone more moderate than would be the case if the Democrats had maintained their super-majority. Lyle goes on to speculate that both Obama and Senate Democrats, looking to this fall’s election, will generally want to tack right in the face of an emboldened GOP and impatient electorate.
I think this sort of analysis is a misapplication of otherwise correct political analysis to the sui generis event that is a Supreme Court nomination. Yes, Scott Brown’s presence in the Kennedy people’s seat will change the dynamic of the health care debate, definitively kill cap and trade, otherwise alter the Democrats’ legislative agenda — and even affect lower court nominees. But I’m not so sure it will affect Obama’s calculus in picking a new Supreme Court justice.
Here’s why: Despite having been a constitutional law professor — whom I did not have when I was in law school, though I passed him in the halls a few times — the president has not really tried to advance his ideological agenda in the courts. It’s bizarre, really, that judicial nominations have not at all been a priority for this administration given that few people pay attention to lower court appointments and this could have been a place where the president could have thrown some bones to his base at little political cost (and certainly far less cost than the rest of his domestic agenda).
Moreover, based on the Sotomayor nomination, we see that when it comes to the Supreme Court, Obama is much more about affirmative action than appointing either the best-qualified Democrats or the most ”progressive” ones (or both, to provide a counterweight to Justice Scalia). (Note that Sotomayor at the time of her nomination was nowhere near the best or most left-wing member of the federal judiciary.) Even with a filibuster-proof Senate majority, we would have been unlikely to see a Cass Sunstein or Harold Koh pick — though each took not insignificant heat and delay in being confirmed to regulatory czar and head State Department lawyer, respectively. (And Larry Tribe is too old.)
With Sonia Sotomayor, Obama hit the “twofer” of a woman and a Hispanic (the first unless you count Benjamin Cardozo). With the Stevens replacement, women and minorities are still slightly preferred but the key “diversity” quota to fill is “non-judge” — and, per the above, a non-controversial one on whom the president won’t have to spend much political capital.
And so, while the prohibitive favorite — solicitor general Elana Kagan (and a woman) – is no surprise, you heard it here first that the other likely nominees, in no particular order, are Janet Napolitano (DHS secretary, woman), Deval Patrick (Massachusetts governor, black), Jennifer Granholm (Michigan governor, woman), Kathleen Sullivan (former Stanford dean, lesbian), Amy Klobuchar (senator, woman), and Akhil Amar (Yale law professor, South Asian). I’ll comment on their relative merits in future posts, but nobody on that list is both a radical and an intellectual heavyweight, and the list has not changed with Scott Brown’s election (though the indirect spotlight during the campaign on Gov. Patrick’s unpopularity might have hurt his chances).
Filibuster Flip-Flops — Again
Today’s question at “Politico Arena“:
“Is the filibuster good or bad for America?”
My response:
The United States is a republic, not a majoritarian democracy. The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution — enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights — is designed to protect liberty by restraining majorities. Furthermore, the Senate was intended to be slower and more deliberative. Washington said to Jefferson, “We put legislation in the senatorial saucer to cool it.” The Founders didn’t invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn’t be too easy to pass laws, and there’s a good case for requiring more than 51 percent in any vote.
During the Bush years, when Republicans controlled the Senate, Democrats used the filibuster especially to block judicial nominations. Many conservatives and Republicans denounced the use of the filibuster. They complained about “tyranny by the minority” and said “all we are asking for is an up or down vote.” I warned conservatives in 2005, “But those conservatives are being ahistorical, short-sighted, and unconservative. Judicial nominations are important, but so are our basic constitutional and governmental structures. Conservatives aren’t simple majoritarians. They don’t think a ‘democratic vote’ should trump every other consideration….Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won’t walk through it again when a much-wanted policy change is being blocked by a filibuster.”
In another column that year, I noted, “Republicans who once extolled the virtues of divided power and the Senate’s role in slowing down the rush to judgment now demand an end to delays in approving President Bush’s judicial nominees. President Bush says the Democrats’ ‘obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate’s constitutional responsibility to vote on judicial nominees.’ Democrats who now wax eloquent about a ‘rubber stamp of dictatorship’ replacing ‘the rights to dissent, to unlimited debate and to freedom of speech’ in the Senate not too long ago sought to eliminate the filibuster altogether.”
I noted various liberal politicos and journalists who appeared to have flip-flopped on the legitimacy of the filibuster, from Sen. Hillary Clinton to the New York Times editorial page. And my old friend E. J. Dionne, who “groused about the ‘anti-majoritarian filibuster rules’ that were preventing needed action in 1998 but warned in 2005 that ending the filibuster would be ‘a radical departure’ that ‘would be disastrous for minority rights.’” Now, I regret to note, the Democrats are back where they belong, in control of the Senate, the Republicans are once again the obstructionist minority, and E. J. is again denouncing the filibuster: “In a normal democracy, such majorities would work their will, a law would pass, and champagne corks would pop.”
In a democracy, maybe. But not in a constitutional republic. As I wrote back in 2005, “American constitutional government means neither majoritarianism in Congress nor acquiescence to the executive.” And of course, there’s a question about what ought to happen if we were indeed a “normal democracy.” A majority of the Senate wants to pass this bill. But a majority of the public opposes it. Is it “democratic” for representatives to defy the majority of their constituents?
If the filibuster allows the public to find out more about a proposed bill and to make its views known, then it is serving a useful purpose. If it sometimes blocks a bill, then it is also serving a useful purpose. But there aren’t many people in Washington who stick to the same position no matter which party is in power. That’s a good reason to have constitutional and procedural rules that last longer than temporary majorities.
Health Care: Not Close to Over
The fat lady hasn’t even started to warm up yet.
The narrow 220-215 victory in the House on Saturday night was a step forward on the road to a government takeover of the health care system. But as close and dramatic as that vote was, that was the easy part. The Senate must still pass its version of reform—which will not be the bill that just passed the House. Nancy Pelosi was, after all, able to lose the votes of 39 moderate Democrats. Harry Reid cannot afford to lose even one. A conference committee must reconcile the two vastly different versions. And then, Pelosi must hold together her 3 vote margin of victory (if it gets that far). Yet several House Democrats who voted for the bill on Saturday said they did so only to “advance the process.” Their vote is far from guaranteed on final passage. And, House liberals are almost certain to be disappointed by the more moderate bill that may emerge from the conference.
Among the more contentious issues:
Individual Mandate: This should’ve been low-hanging fruit. Democrats agreed on a mandate early in the process. But it became increasingly plain that a mandate would hit those with insurance as well as the uninsured — forcing people who are happy with their plan to switch to a different, possibly more expensive plan. With this mandate now being seen as a middle-class tax hike, qualms have developed. The House bill contains a strict mandate, with penalties of 2.5 percent of income backed up by up to five years in jail. The Senate Finance Committee, on the other hand, watered down the mandate’s penalties and delayed the mandates implementation.
Employer Mandate: The House bill also contains an employer mandate, a requirement that all but the smallest employers provide insurance to their workers or pay a penalty tax of up to 8 percent of payroll. The Senate, looking at unemployment rates over 10 percent, seems unlikely to include an employer mandate.
The Public Option: The House included, if not a “robust” public option, at least a semi-robust one. But moderate Democrats in the Senate are clearly not on board. Joe Lieberman (I-CT) says that he will join a Republican filibuster if the public option is included. Harry Reid is trying various permutations: a trigger, an opt-in, an opt-out. But as of now there is not 60 votes for any variation.
The Sheer Cost: Fiscal hawks like Sen. Evan Bayh (D-IN) say they will not support a bill that adds to the deficit or spends too much. But the house bill cost a minimum of $1.2 trillion.
Taxes: The House plan to add a surtax on incomes of $500,000 or more a year has no support in the Senate. At the same time, the Senate plan to slap a 40 percent excise tax on “Cadillac” insurance plans is unacceptable to key Democratic constituencies like labor unions.
Abortion: Conservative Democrats insisted on a strict prohibition on the use of government funds for abortion. The bill could not have passed without the inclusion of that provision. House liberal swallowed hard and voted for the bill, despite what they called “a poison pill” anyway with the expectation that it will be removed later. If the final bill includes the prohibition at least a couple liberals could defect. If it doesn’t, conservative Democrats won’t be on board.
Immigration: The Senate Finance Committee included a provision barring illegal immigrants from purchasing insurance through the government-run Exchange. The House Hispanic Caucus says that if that provision is in the final bill, they will vote against it.
As if these disagreements among Democrats wasn’t bad enough, public opinion is now turning against the bill.
President Obama has called for a bill to be on his desk before Christmas—the latest in a series of deadline that are so far unmet. It is hard to see how Congress can meet this one either. The Senate has not yet received CBO scoring of its bill and is not prepared to even begin debate until next week at the earliest. That debate will last 3-4 weeks minimum, assuming there are 60 votes for cloture. That means, the bill cant’ go to conference committee until mid-December, even if everything breaks the way Harry Reid wants. Privately, Democrats are now suggesting late January, before the State of the Union address, is the best they can do.
The fat lady can go back to sleep—this isn’t over yet.
Vetting the Future Supreme Court Justice
In choosing a Supreme Court nominee to replace Justice Souter, President Obama will have an opportunity to avoid the partisanship he promised to reduce on the campaign trail, which his legislative agenda has thus far only exacerbated.
But given the way Bush nominees were treated by Senate Democrats, it won’t be easy. After the stormy confirmation hearings for Judges Bork and Thomas, President Clinton’s nominations of Judges Ginsburg and Breyer sailed through the confirmation process with little opposition and even less acrimony. With the return of Republican nominees after the election of George W. Bush, however, Senate Democrats resumed their scorched earth practices, starting with appellate court nominees and continuing to the nominations of Judges Roberts and Alito to the High Court.
Hearings were never held, filibusters were threatened and reputations were tarnished.
The question now for Senate Republicans will be, is turnabout fair-play?
The answer may turn on just who President Obama selects. At the least, given this recent history, there is no reason Senate Republicans need to be unduly deferential to the president’s nominee. We will need to know both the judicial philosophy and the constitutional philosophy of the nominee.
That will require respectful but sharp questioning by members of the loyal opposition. Their duty under the Constitution requires nothing less.
Republican Strategy on the Supreme Court Vacancy
President Obama is not the only one with a difficult decision to make in the face of mounting pressure from various groups. The Republicans will have to decide what posture to take: combative or deferential, political or analytical.
With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.
What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want. Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide. If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.
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