Redstate

Further reason to disagree with the suggestion that the filibuster is unconstitutional on its own is found in the Constitution itself. Article I, Section 5 includes this language:

"Each House may determine the rules of its proceedings. . ."

The Ballin case, decided in 1892, recognizes that a constitution - "the organic act under which the body is constituted" - can specify particular requirements, but it does not address the question of whether "the body" can set its own procedures. The language quoted says that Congress and the Senate can do so.

If the Senate were to pass a rule providing that any votes to confirm a judge must pass by a 60% majority, that would be another matter. One of the "general rules of parliamentary bodies" is that a majority (of those present) is sufficient. But a rule determining when and how debate can be shut off is a "rule of its proceedings" and is specifically allowed.

What I find objectionable (not Constitutionally, just procedurally) is the fact that the Senate has permitted a wimpy filing of a notice to substitute for a true filibuster. Get rid of that rule, but allow filibusters. If a Senator wants to filibuster a judge, a bill, or anything else, make him stand up and talk for 72 hours straight. Don't let him break for dinner, or to use the bathroom. Make him talk and talk, until he cannot stand any longer. That's the way to do a filibuster, by God.

minority (In this case a fairly large one).  The senate has approved almost all of the judges nominated by Bush.  In addition, the senate is full of procedures that came into existence over the last century and before that go against the idea that the act of the majority is the act of the body.  We can get rid of the filibuster, but we shouldn't pretend that democrats are doing anything that hasn't been done in some form (blue slips, senatorial courtesy, etc...) many times before on both sides of the aisle.  The senate has grown up around these sorts of checks and balanced for a reason.  The balance of power doesn't stop at the three branches of government, it must be ubiquitous throughout each branch as well.  

The balance of power doesn't stop at the three branches of government, it must be ubiquitous throughout each branch as well.  

So the VP should be of the opposing party?  The cabinet?  The entire SES?  This has been tried by John Adams vs Thomas Jefferson, Andrew Johnson vs Lincoln's Cabinet, and others.  It is not a good system.

The Senate developed a system of internal checks and balances because it has functioned as an anti-democratic institution, often independent of political party leadership.  Filibusters developed to support regional 'nullification-type' defenses against national consensus, not to protect minority rights.  In fact the filibuster's most famous uses have been to prevent minority interests in select areas from being protected by national majorities.  

In all the lamenting of the passing of the 'noble filibuster' I have yet to read of a use of the filibuster that was a defense of minority interests that protected the common good.

The democrat threat to 'shut down the Senate' should be seen for the God-send that it is.  With the withdrawl of 'consent' from the Senate, democracy will be restored at the expense of expediency and petty (and petit) dictatorship of the 100.

What I find objectionable (not Constitutionally, just procedurally) is the fact that the Senate has permitted a wimpy filing of a notice to substitute for a true filibuster.

Just leaving aside the arguments about abolishing it outright for a second -- is this what they have been doing?  I hadn't seen that point mentioned before.  For pete's sake, ordinary citizens like you and I will endure hardships worse than that sitting outside venues waiting for tickets to a 50 Cent concert!  I mean, I know our senators are precious and fragile artifacts -- they're like Fabergé Eggs, or crystal unicorns,  but how easy is too easy?  Sheesh.    

the vp to be from a different party etc..., just that there needs to exist certain procedures to allow for the expression of the minority view.  Second, using things like the civil rights filibuster to undermine the filibuster as a procedure misses the point of what the filibuster and things like it do.  They are not there to ensure that the proper path is always taken, they are there to ensure that the more moderate path is taken.  Like it or not, when thurmond used the filibuster, he was speaking for a large number of people who believed the same thing.  That's the price we pay for our system.  We make progress more slowly, but we also ensure that we don't regress too quickly to realize or fix our mistakes.  

And yes, the senate does occasionally act as an anti-democratic institution, because pure democracy has no protection for the minority.

Protecting the 'interests' of Thurmond and Byrd, in hindsight, can be seen to be counterproductive.  Whatever good came from Civil Rights legislation would have come better and sooner without the filibuster-- and maybe without the filibuster the courts wouldn't have been spurred to take up an legislative function.

I don't think the filibuster is unconstitutional in the context of these bodies having the power to make their own procedural rules, and thanks to Pejman for this post, for clearing that up a little bit and placing the debate back in the realm of rules of parliamentary procedure.  

But the article by Rushton also deserves a fuller read.  It was noted briefly over at ConfirmThem, but has been neglected here, AFAIK.

Filibuster Rules: Then And Now.

Rules guaranteeing up-or-down majority votes and abolishing the filibuster in various contexts are commonplace in modern Congresses as well. In fact, there are at least 26 laws on the books today abrogating the filibuster. For example:

• You cannot filibuster a federal budget resolution (Congressional Budget and Impoundment Control Act of 1974).




• You cannot filibuster a resolution authorizing the use of force (War Powers Resolution).




• You cannot filibuster international trade agreements (Bipartisan Trade Promotion Authority Act of 2002).




• And as the minority leader, Sen. Harry Reid (D., Nev.), well knows, you cannot filibuster legislation under the Nuclear Waste Policy Act of 1982.

The Democrats are being hypocritical in the extreme right now asre: filibusters.  They know they are -- and they also know how much hypocrisy they can get away by targeting campaigns to people at a sixth-grade reading level.  As I've pointed out before, they have wanted to end the practice before, just not right now, and did as recently as a month ago, so sayeth the New Yorker.

So, Democrats, please: If the Republicans go nuclear and ban filibusters for judicial nominations, by all means raise holy hell. But don't elevate the filibuster into a moral principle, and when you get back into power--and, hard as it may be to believe at the moment, that day will come--get rid of it for everything else, too.

So this entire debate seems, at least to me, to be a bit melodramatic.  Call me cynical, but I think both sides right now are testing the waters -- making a lot of noise to gauge public reaction -- about rules they each know they have the constitutional authority to create or destroy, governing their own conduct.  I've already made up my mind about it.  Let's end the piracy.

The filibuster exists only in the Senate, the Senate was created to represent the interests of States which would act as a check on the populist interests of the House when considering Federal legislation that would affect all States.

Without the filibuster civil rights legislation would have been achieved quicker but the concomitant result would have been the alienation of a minority of southern States creating a bigger problem than the populist notion of civil rights was intended to solve.  The filibuster thus served as a brake on progress that forced the nation to reach a more durable and less populist consencus that has stood the test of time notwithstanding its imperfections.

Removing the filibuster from the armoury of the Senate cripples that body's ability to impose consencus beyond the 50+1 populism of the House leading to the tyrany of the (bare) majority over the (substantial) minority.  Limiting the filibuster in regard to judicial nominations might seem a reasonable argument but judicial nominations are the current battleground and thus there is no gaurantee and substantial precedent established for the same tactic to be used on the next battleground until the filibuster is gone for all time.

with any number of senate procedures when they were inconvenient. That doesn't mean that they were right.  In the same vein, democrat hypocrisy doesn't make the filibuster less valuable.  Why not just get rid of all senate pocedures and vote up or down on everything that comes before the senate?  No debate, no giving greater weight to those most familiar with the issue, just vote.  Would that make the senate more effective?  

Per Senator Patrick Lehy

In 1993 and 1994, a very disciplined Republican minority in the Senate used the filibuster to block key pieces of President Clinton's legislative agenda, including an economic stimulus package, campaign finance reform, lobbying reform, health care reform, a bill to prohibit hiring permanent replacement workers for striking employees, and racial justice provisions in a crime bill.

Although since it is Lehy, I cannot be certain that he is being accurate in labeling these as "filibusters" (particularly since the term has become so vague in meaning) but these were probably all good things to be against (too bad it wasn't used successfully on the Medicare prescription drug benefit).  However most of the previous filibusters seem to be against generally good stuff such as capital gains tax cuts and (some) civil rights legislation.

. . .the filibuster against Justice Abe Fortas when he was nominated to be Chief Justice of the United States turned out to be rather justifiable--he was forced to resign from the Court about a year later for ethical violations that he had been involved with for a substantial time before the CJ nomination.  However--as with Clintoncare--it seems questionable to credit the filibuster (or whine about it, as the Dems have been doing lately to justify their own activities) for blocking Fortas when the headcount before Fortas withdrew his nomination indicated that he didn't even have a majority willing to vote for him in the Senate.  If all a filibuster did was delay a vote a few days while discussion went on, very few would find it objectionable except in cases like the Civil Rights Acts.

U.S. v. Ballin

I am all in favor of collecting whatever parchment we can to paper over the naked power play we shall have to engage in to overcome the naked power play the Democrats are engaged in.

Interest of the states are better served by filibusters than by majority vote?  

Senators are directly elected these days.  That they represent each state equally and that their terms are longer and their elections not co-incident provides a brake on popular fads.  The filibuster is not provided for in the Constitution, it is a debating rule, a tool for work to be done.  It may be that this tool is no longer useful.

I disagree completely about the success of civil rights legislation being in part or in whole  enhanced by un-democratic, but Democrat, delay.  As I wrote above, I believe the delay caused the courts to enter politics more openly than they should be allowed to do, regardless of any laudable goals.

Filibustering the BTU tax may have been good in the short term by saving us from such idiocy and a couple of bad years on the economic side, but had they passed with such overwhelming Presidential support and Democrat glee, maybe the voters would have remembered who stood against the idea in the firt place and who wanted their heat taxed no matter which fuel they used?

Jack Kemp has a take (from five months ago!) on how to break the filibuster without changing the rules, but I still believe that filibustering is a bad thing, even in the service of a good idea.

Recall that the filibuster was done in that case as a delaying tactic to prevent Lyndon Johnson from filling the position of Chief Justice in the summer of 1968, after he had announced that he would not run again, and with an eye by the opponents on the prospect of a Republican victory in the fall.

The primary objection to Fortas at at that time, other than the fact that Johnson had chosen him, was that he was aligned with the activist wing on the Warren court.  

The ethics issues that arose later were entirely unrelated. No one had a clue about them in 1968.

People can disagree about whether there have been judicial filibusters technically or not, but at most, throughout the history of the Senate before the previous Senate, there were no more than 2 judicial filibusters, total, and neither primarily by the minority party.

What has made the Democrats think, given that history, that they could suddenly minority-filibuster ten judges, with no consequences?

They're behaving like a three-year-old with a toy.  Give a kid a noisemaker, and if he only sets it off a couple times, the dad won't likely do much, but if the kid makes a continual racket with it, the dad will take it away, no matter how much the kid whines and pouts and complains.