Saturday, May 14, 2005

Filibuster: Breaking the rules to change the rules is the end of Constitutional government 

Yep, Bill "Hello Kitty" Frist is about to take the knife to 200 years of Senate tradition and the Constitution. As well as the notion that a Senate minority—that represents a majority of the American people (back here)—has any right to representation whatever.

Removing any doubt about his intentions, the Senate majority leader said Friday that he would try next week to advance the nominations of two judicial candidates opposed by Democrats and, should the Democrats block a vote, demand a change in Senate rules to prevent filibusters against the nominees.
(via Times)

We'll leave the pious cant and the weasel-wording about the "Constitutional Option" to the wingers who are so experienced and capable of laying down that kind of trail of slime; suffice to say, with Chuck Hagel, that the Republicans don't have clean hands on the issue.

Let's just focus on the basic fairness of what the Republicans are doing.

The Constitution also says in Article I, Section 5: "Each House [of Congress] may determine the rules of its proceedings." Senate rules permit members to engage in filibusters to stall judicial confirmation votes. Under Senate Rule XXII, even though only 51 votes are needed to confirm a nominee, it takes at least 60 votes to end a filibuster. In addition, the rule says any attempt to change a Senate rule requires the support of two-thirds of the senators "present and voting" (67 votes if all 100 senators are participating).

It is those higher vote requirements that are the intended target of the nuclear option. Under that option, the Republicans would use a majority vote (rather than 67 votes) to change the filibuster rule from 60 votes to 51 votes.
(CS Monitor)

So, it takes 67 votes (2/3) to change a rule. It take 60 (3/5) votes to end a filibuster. The Republicans are going to change the rule (should be 67 votes) with 51 (1/2 + 1), and end the filibuster (should be 60 votes) with that 51. All because they've got Dick "Dick" Cheney in the chair, and he'll ignore the Senate Parliamentarian, he'll break the rules to change the rules (as the Republicans have done over and over again.

Does that sound fair?

The bottom line, of course, is exactly what the Republicans and their Dominionist owners want: Absolute power. No opposition on Capitol Hill at all. No sunlight.

And I suggest the battle is not simply about Supreme Court judges; the battle is about the independent judidiciary, and whether the Repubublicans and their Dominionist allies are to have any checks on the absolute power they crave.

To take just one example: The RealID bill (back) contains a provision that purports to exempt the Department of Homeland Security from judicial scrutiny. (They say that's to build a fence on the Mexican border, but it's an obvious sighting shot. What next?)

How many other laws would the Republicans—with the absolute power their new rules give them—like to pass that can never be examined by the courts?

A lot, I would suggest; Republicans are very imaginative about behaviors they would like to forbid—for others.

But the bottom line is that our Constitutional experiment would perish from the earth. Federalist #78:

The judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder [as the Republicans did in the Terry Schiavo case], no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

The Dominionist boot, stamping on a human face. Forever.

NOTE That this assault on the judiciary is long planned and policy-based is evident from the counterfactual rhetoric employed by the Dominionists in the aftermath of the Terry Schiavo case. The rhetoric was all about unelected liberal judges—despite the fact that Judge Greer was (1) elected (66% majority), (2) a registered Republican, and (3) a churchgoing Baptist. But your typical winger never lets the facts get in the way of a good assault on the Constitution.

UPDATE According to WaPo, Frist and Reid are going to have dinner on Monday. I hope Reid brings his own foodtaster:

Though nothing is fixed, negotiators believe they may have the seed of a real solution that allows Frist to bring all the nominees to floor, while leaving the filibuster rule intact -- a crucial demand of the Democrats, who want the option of using the filibuster on future Supreme Court nominees. Democrats are increasingly optimistic that they may be able to attract enough Republican support to kill the rule-change effort outright.

The two leaders have set a tentative deadline of the end of the day Monday to conclude their negotiations. Frist and Reid have a previously arranged dinner date Sunday at Frist's home.

People familiar with the talks cautioned that nothing is fixed. "It's not soup yet," said one senior Senate aide. But there is a growing belief on both sides that if a credible alternative with a guaranteed outcome is presented, it would change the dynamic of the debate, by exposing a substantial bloc of bipartisan support for a compromise. Although the most vociferous Democratic and Republican factions appear to be itching for a showdown, many rank-and-file senators are loath to tamper with Senate rules and are weary of the judicial battle, a massive distraction that threatens to grind business to a halt for months to come.

Leaving the filibuster rule intact this time. Since the word of the Republicans is not good, we can be sure they'll try again. Frankly, I think it's better that a Republican Congress can't pass any laws; especially if the way the Dems tie the chamber up is by introducing the kind of bills the Republicans ought to be passing. We could start with a resolution thanking the citizens who bought their own children body armor for Iraq, and we could end up with "Common Good" health insurance for all.

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