Saving The Constitution From Nuclear Terrorists
In a short time, the Senate may come to a confrontation over the issue of filibusters relating to judicial nominations. Bush has nominated several far-right judges to the Federal bench, and thus far, the Democrats have successfully prevented those nominations from reaching the Senate floor by threatening to conduct "filibusters" (indefinite debate) against the nominations. The GOP is threatening to use what it has dubbed the "nuclear option" to eliminate filibusters as a means of de-railing judicial nominations. Specifically, the Republicans want to change, or more accurately set aside, the Senate Rule which expressly provides that a filibuster can be ended only by a vote of three-fifths of the Senate, and instead, permit a filibuster to be ended by a simple majority.
By the way, the term "nuclear option" does have a Republican provenance, Trent Lott specifically being the first one to use the term. As we know, Trent does not have much of a way with words ("Boy I loved them good ol' Jim Crow days!"), and since "nuclear option" is not exactly a melifluous sounding way of selling the GOP's strategy to the public, Republican spinners have gone wild insisting that their tactic be called the "constitutional option" and trying to blame Democrats for having invented the term "nuclear option." The ever-compliant media has generally gone along with the Republicans by attributing the term "nuclear option" to the Democrats.
In any event, in all of the media brouhaha about what to call the Republicans' tactic, virtually no media attention has been paid to precisely what this tactic is, a tactic that is far more complicated and insidious than is generally understood. The assumption in the media is that this is simply a question of head-counting; if the Republicans have enough votes to do it, then it is assumed that the Republican majority in the Senate has the Constitutional power to carry out this "nuclear option." Most Americans who are aware of this issue at all probably think that what is going here on is that the Republicans are just trying to change the Senate rules by permitting the vote of a simple majority to end a filibuster. That's what I thought, at least before I saw a very interesting lecture on the subject by a Washington University professor that was aired on C-Span the other night around midnight. It's remarkable how ignorant most people are about what this "nuclear option" really entails; I recently spoke with a law professor about this subject and even he was unaware of the fact that the GOP's exercise of the "nuclear option" entailed anything other than a simple majority vote to change the Senate rules. (I subsequently found a very informative piece on this subject by Tim Grieve dated May 12, 2005 at www.salon.com.)
In fact, the Constitutional issues raised by the Republicans' exercise of their "nuclear option" are very serious. Contrary to common belief, a Senate Rule can be changed only by a vote of two-thirds of the Senate, not a simple majority. Thus, Senate Rule XXII -- the Senate Rule at issue here which provides that a "cloture" vote, i.e., a vote to cut off debate, requires the approval of three-fifths of the Senate (sixty Senators under current arithmetic) -- can only be amended or deleted by a vote of two-thirds of the Senate. Clearly, the Republican nuke-nuts do not have anything approaching two-thirds of the Senate to support their Strangelovian strategy.
How then would the Republicans carry out their "nuclear option"? The whole thing hinges upon an argument that the Republicans have come up with that it is supposedly "unconstitutional" to hold up a judicial nomination based on anything other than the vote of a simple majority of the Senate. In the words of Senator Hatch and other GOP flunkies, the Constitution supposedly guarantees the President "an up or down vote" on all judicial nominees. This constitutional argument relies on Article II, Section 2 of the Constitution, which states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . Judges of the supreme Court, and all other Officers of the United States. . . ." According to the Republicans, "advice and consent" means a simple majority of the Senate (although the Constitution doesn't say that) and any Senate Rule that prevents a simple majority of the Senate from approving a Presidential nomination is therefore supposedly unconstitutional.
Mechanically, the "nuclear option" would work as follows (Roberts Rules of Order geeks like me will find this really neat; all others can skip to the next paragraph): A Republican Senator (presumably Republican Senate leader Frist) would put forward one of the disputed judicial nominations for a vote on the Senate floor. A Democratic Senator would then call for debate on the nomination. A Republican Senator (again presumably Frist) would then make a cloture motion to cut-off (or limit) debate, and the cloture motion would be carried by a simple majority of the Senate, but not by three-fifths as required by Senate Rule XXII. The Democrats would then attempt to continue debate but a Republican Senator (again presumably Frist) would then raise a "point of order" asserting that it is unconstitutional to hold up a judicial nomination based on anything other than a majority vote. The Chair (Vice President Cheney) would then uphold the point of order by interpreting the Constitution as rendering Senate Rule XXII unconstitutional. The Democrats would then object to the ruling of the Chair, but a Republican Senator (again presumably Frist) would then move to table the Democrats' objection. A motion to table cannot be debated and can be carried by a simple majority. The motion to table would then be carried by a simple majority and the judicial nomination would then be put to a vote and approved by a simple majority of the Senate.
When I first heard all of this explained on C-Span, I was immediately struck by the fact that this is not about changing the Senate's rules or even about interpreting the Senate's rules; this is about interpreting the Constitution. Moreover, it is clear to me that the Republicans' proposed interpretation of the Constitution is utterly frivolous. There is absolutely nothing in the "advice and consent" clause in Article II or anywhere else in the Constitution that prevents the Senate from enacting rules governing the conduct of debate on Presidential nominations. On the contrary, Article I, Section 5 of the Constitution expressly provides that "Each House may determine the Rules of its Proceedings." Senate Rule XXII, requiring a three-fifths majority for a cloture vote, is entirely Constitutional under this provision. The Senate has reasonably determined that its deliberative processes are advanced by having more, not less, debate, and that debate should be ended only when there is a substantial majority of Senators (three-fifths) in favor of doing so. The Supreme Court has held that the Houses of Congress are constitutionally permitted under Article I, Section 5 to exercise their rule-making authority so long as the rule bears a "reasonable relation" to the end sought to be achieved. United States v. Ballin, 144 U.S. 1, 5 (1892). A rule recognizing that the elimination of debate is an extreme measure that ought not to be undertaken lightly is clearly reasonable under this standard.
Nor is there any merit to the claims of Senator Hatch and other Republicans that the Constitution supposedly guarantees an "up or down vote" by a simple majority on all Presidential nominees. First, as noted previously, the Constitution does not even define the phrase "advice and consent" as meaning a simple majority of the Senate, and presumably, the Senate could even enact a rule requiring more than a simple majority in order to constitute "consent" to a Presidential nominee.
More important, however, is the fact that we are not talking about a rule governing the level of a majority required to appove a nomination, but rather a rule governing Senate procedure -- the procedure for cutting off debate -- which the Constitution explicitly gives the Senate the power to enact. There are numerous procedural rules that the Senate has duly enacted which may cause a Presidential nomination not to be brought to the floor of the Senate for an "up or down vote." For example, nominations do not even get to the floor of the Senate unless they are voted out of Committee; that was how the Republicans held up a large number of Clinton's judicial nominations, by bottling them up in Committee (Hatch was Chair of the Senate Judiciary Committee responsible for blocking several of Clinton's nominations). The Constitution doesn't say anything about Congressional Committees, yet it has never been suggested that the Senatorial system of pre-screening nominations through Committees is unconstitutional. There is absolutely nothing unconstitutional about the fact that a Presidential nomination may not come to an "up or down vote" on the Senate floor, regardless of whether the reason was because the nominee failed to make it through Committee or because the proponents of the nomination could not muster the required three-fifths majority to end debate.
Finally, perhaps the most frightening aspect of the Republicans' exercise of their "nuclear option" is the matter of who will be interpreting the Constitution. If the Republicans' "nuclear option" scenario is carried out as described above, then the final arbiter of the meaning of the Constitution will be none other than Vice President Dick Cheney. If that doesn't send a chill down your spine, then you're probably even more cadaverous than Cheney himself.
Which brings me to my last point: the validity of any judicial nomination that is approved by the Senate by means of the exercise of the Republicans' "nuclear option" should be subject to challenge in the Courts. A nomination that has been approved on the basis of a truncated debate that has been cut off in violation of the rules of the Senate -- and not because there has been any alteration, amendment or even mis-interpretation of the Senate Rules but rather because there was an erroneous interpretation of the Constitution -- cannot be considered to be an appointment that satisfies the "advice and consent" requirement of Article II. While Courts often are reluctant to decide cases which turn upon an interpretation of a Congressional rule, the Supreme Court has also made it clear in the Adam Clayton Powell case and in many other cases, that Congressional action will be subject to judicial review where questions of Constitutional interpretation are determinative. Powell v. McCormack, 395 U.S. 486, 501 (1969). That is precisely what is at stake in the Republicans' exercise of their "nuclear option," namely, the question of whether or not the Constitution requires the invalidation of Senate Rule XXII in cases of judicial nominations.
How would such a Court challenge to the Republicans' strategy arise? Certainly, any litigant who has a case before one of the contested judges could raise a challenge to the legality of the judge's appointment, since any litigant in Federal Court has a Constitutional right to have his or her case decided by a judge appointed in conformity with the requirements of the Constitution. Edmond v. United States, 520 U.S. 651 (1997). Even a Bar Association whose members regularly appear in court may have standing to challenge the legality of the judicial appointment process. Washington Legal Foundation v. U.S. Dept. of Justice, 491 U.S. 440 (1989).
What is important here is that the Republicans not be permitted to carry out their "nuclear option" and trash the Constitution without a knock-down, drag-out fight. There is a reason why the wing-nuts have focused on the Judiciary as the object of so much of their venom. (See my earlier blog on "Bush's Culture of Life Curdles The War on Terror.") The Judiciary is the last, best hope for the protection of constitutional government in this country. It is time to pull out all of the stops to protect the Judiciary -- and the Constitution.
By the way, the term "nuclear option" does have a Republican provenance, Trent Lott specifically being the first one to use the term. As we know, Trent does not have much of a way with words ("Boy I loved them good ol' Jim Crow days!"), and since "nuclear option" is not exactly a melifluous sounding way of selling the GOP's strategy to the public, Republican spinners have gone wild insisting that their tactic be called the "constitutional option" and trying to blame Democrats for having invented the term "nuclear option." The ever-compliant media has generally gone along with the Republicans by attributing the term "nuclear option" to the Democrats.
In any event, in all of the media brouhaha about what to call the Republicans' tactic, virtually no media attention has been paid to precisely what this tactic is, a tactic that is far more complicated and insidious than is generally understood. The assumption in the media is that this is simply a question of head-counting; if the Republicans have enough votes to do it, then it is assumed that the Republican majority in the Senate has the Constitutional power to carry out this "nuclear option." Most Americans who are aware of this issue at all probably think that what is going here on is that the Republicans are just trying to change the Senate rules by permitting the vote of a simple majority to end a filibuster. That's what I thought, at least before I saw a very interesting lecture on the subject by a Washington University professor that was aired on C-Span the other night around midnight. It's remarkable how ignorant most people are about what this "nuclear option" really entails; I recently spoke with a law professor about this subject and even he was unaware of the fact that the GOP's exercise of the "nuclear option" entailed anything other than a simple majority vote to change the Senate rules. (I subsequently found a very informative piece on this subject by Tim Grieve dated May 12, 2005 at www.salon.com.)
In fact, the Constitutional issues raised by the Republicans' exercise of their "nuclear option" are very serious. Contrary to common belief, a Senate Rule can be changed only by a vote of two-thirds of the Senate, not a simple majority. Thus, Senate Rule XXII -- the Senate Rule at issue here which provides that a "cloture" vote, i.e., a vote to cut off debate, requires the approval of three-fifths of the Senate (sixty Senators under current arithmetic) -- can only be amended or deleted by a vote of two-thirds of the Senate. Clearly, the Republican nuke-nuts do not have anything approaching two-thirds of the Senate to support their Strangelovian strategy.
How then would the Republicans carry out their "nuclear option"? The whole thing hinges upon an argument that the Republicans have come up with that it is supposedly "unconstitutional" to hold up a judicial nomination based on anything other than the vote of a simple majority of the Senate. In the words of Senator Hatch and other GOP flunkies, the Constitution supposedly guarantees the President "an up or down vote" on all judicial nominees. This constitutional argument relies on Article II, Section 2 of the Constitution, which states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . Judges of the supreme Court, and all other Officers of the United States. . . ." According to the Republicans, "advice and consent" means a simple majority of the Senate (although the Constitution doesn't say that) and any Senate Rule that prevents a simple majority of the Senate from approving a Presidential nomination is therefore supposedly unconstitutional.
Mechanically, the "nuclear option" would work as follows (Roberts Rules of Order geeks like me will find this really neat; all others can skip to the next paragraph): A Republican Senator (presumably Republican Senate leader Frist) would put forward one of the disputed judicial nominations for a vote on the Senate floor. A Democratic Senator would then call for debate on the nomination. A Republican Senator (again presumably Frist) would then make a cloture motion to cut-off (or limit) debate, and the cloture motion would be carried by a simple majority of the Senate, but not by three-fifths as required by Senate Rule XXII. The Democrats would then attempt to continue debate but a Republican Senator (again presumably Frist) would then raise a "point of order" asserting that it is unconstitutional to hold up a judicial nomination based on anything other than a majority vote. The Chair (Vice President Cheney) would then uphold the point of order by interpreting the Constitution as rendering Senate Rule XXII unconstitutional. The Democrats would then object to the ruling of the Chair, but a Republican Senator (again presumably Frist) would then move to table the Democrats' objection. A motion to table cannot be debated and can be carried by a simple majority. The motion to table would then be carried by a simple majority and the judicial nomination would then be put to a vote and approved by a simple majority of the Senate.
When I first heard all of this explained on C-Span, I was immediately struck by the fact that this is not about changing the Senate's rules or even about interpreting the Senate's rules; this is about interpreting the Constitution. Moreover, it is clear to me that the Republicans' proposed interpretation of the Constitution is utterly frivolous. There is absolutely nothing in the "advice and consent" clause in Article II or anywhere else in the Constitution that prevents the Senate from enacting rules governing the conduct of debate on Presidential nominations. On the contrary, Article I, Section 5 of the Constitution expressly provides that "Each House may determine the Rules of its Proceedings." Senate Rule XXII, requiring a three-fifths majority for a cloture vote, is entirely Constitutional under this provision. The Senate has reasonably determined that its deliberative processes are advanced by having more, not less, debate, and that debate should be ended only when there is a substantial majority of Senators (three-fifths) in favor of doing so. The Supreme Court has held that the Houses of Congress are constitutionally permitted under Article I, Section 5 to exercise their rule-making authority so long as the rule bears a "reasonable relation" to the end sought to be achieved. United States v. Ballin, 144 U.S. 1, 5 (1892). A rule recognizing that the elimination of debate is an extreme measure that ought not to be undertaken lightly is clearly reasonable under this standard.
Nor is there any merit to the claims of Senator Hatch and other Republicans that the Constitution supposedly guarantees an "up or down vote" by a simple majority on all Presidential nominees. First, as noted previously, the Constitution does not even define the phrase "advice and consent" as meaning a simple majority of the Senate, and presumably, the Senate could even enact a rule requiring more than a simple majority in order to constitute "consent" to a Presidential nominee.
More important, however, is the fact that we are not talking about a rule governing the level of a majority required to appove a nomination, but rather a rule governing Senate procedure -- the procedure for cutting off debate -- which the Constitution explicitly gives the Senate the power to enact. There are numerous procedural rules that the Senate has duly enacted which may cause a Presidential nomination not to be brought to the floor of the Senate for an "up or down vote." For example, nominations do not even get to the floor of the Senate unless they are voted out of Committee; that was how the Republicans held up a large number of Clinton's judicial nominations, by bottling them up in Committee (Hatch was Chair of the Senate Judiciary Committee responsible for blocking several of Clinton's nominations). The Constitution doesn't say anything about Congressional Committees, yet it has never been suggested that the Senatorial system of pre-screening nominations through Committees is unconstitutional. There is absolutely nothing unconstitutional about the fact that a Presidential nomination may not come to an "up or down vote" on the Senate floor, regardless of whether the reason was because the nominee failed to make it through Committee or because the proponents of the nomination could not muster the required three-fifths majority to end debate.
Finally, perhaps the most frightening aspect of the Republicans' exercise of their "nuclear option" is the matter of who will be interpreting the Constitution. If the Republicans' "nuclear option" scenario is carried out as described above, then the final arbiter of the meaning of the Constitution will be none other than Vice President Dick Cheney. If that doesn't send a chill down your spine, then you're probably even more cadaverous than Cheney himself.
Which brings me to my last point: the validity of any judicial nomination that is approved by the Senate by means of the exercise of the Republicans' "nuclear option" should be subject to challenge in the Courts. A nomination that has been approved on the basis of a truncated debate that has been cut off in violation of the rules of the Senate -- and not because there has been any alteration, amendment or even mis-interpretation of the Senate Rules but rather because there was an erroneous interpretation of the Constitution -- cannot be considered to be an appointment that satisfies the "advice and consent" requirement of Article II. While Courts often are reluctant to decide cases which turn upon an interpretation of a Congressional rule, the Supreme Court has also made it clear in the Adam Clayton Powell case and in many other cases, that Congressional action will be subject to judicial review where questions of Constitutional interpretation are determinative. Powell v. McCormack, 395 U.S. 486, 501 (1969). That is precisely what is at stake in the Republicans' exercise of their "nuclear option," namely, the question of whether or not the Constitution requires the invalidation of Senate Rule XXII in cases of judicial nominations.
How would such a Court challenge to the Republicans' strategy arise? Certainly, any litigant who has a case before one of the contested judges could raise a challenge to the legality of the judge's appointment, since any litigant in Federal Court has a Constitutional right to have his or her case decided by a judge appointed in conformity with the requirements of the Constitution. Edmond v. United States, 520 U.S. 651 (1997). Even a Bar Association whose members regularly appear in court may have standing to challenge the legality of the judicial appointment process. Washington Legal Foundation v. U.S. Dept. of Justice, 491 U.S. 440 (1989).
What is important here is that the Republicans not be permitted to carry out their "nuclear option" and trash the Constitution without a knock-down, drag-out fight. There is a reason why the wing-nuts have focused on the Judiciary as the object of so much of their venom. (See my earlier blog on "Bush's Culture of Life Curdles The War on Terror.") The Judiciary is the last, best hope for the protection of constitutional government in this country. It is time to pull out all of the stops to protect the Judiciary -- and the Constitution.
posted by democratic core at 1:19 PM
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