Okay everyone. Get ready. With all this Pope business firmly behind us, the press will be looking for the next big story to dissect to death from every angle. The pundits will be out in full force (including me). The next big story (which will begin Sunday) will be that of Senate Majority Leader Bill Frist, invoking the Nuclear Option. From Wikipedia:
The “nuclear option,” as used in American politics circa 2005, is a catchprase referring to a political manuever that would allow the Senate majority (currently Republicans) to prevent the minority party (currently Democrats) from filibustering judicial nominees. By U.S. Law, certain judicial appointees, particularly Supreme or other federal court Justices, must be confirmed by the U.S. Senate before taking the bench. Under current Senate rules, a minority of senators are able to prevent the confirmation of judges via filibuster unless a supermajority can be reached to ‘break’ the filibuster. The ‘nuclear option’ refers to the technicality that only a simple majority is necessary to change this rule. That is, although a supermajority is currently necessary to break the filibuster, a simple majority could alter the Senate rules so that only a simple majority would be required to break the filibuster. The term is often used derogatorily by Democrats because of the term’s bad connection with nuclear war.
The primary argument forwarded by Republicans in defense of invoking the nuclear option and ending filibusters was a legal argument written by Martin B. Gold and a moonlighting 26 year old Justice Department attorney, Dimple Gupta.
To make it as succinct as possible (and there really is no fair way to do so), Gold and Gupta point out that according to the law the majority HAS THE CONSTITUTIONAL OPTION to change the rules.
Conservative columnist Bob Novak writes in the Chicago Sun-Times about the so-called “constitutional option,” discussed by Gold and Gupta. Specifically he paraphrases their argument to explain that in the past the Democrats have also subverted minority rights while in power:
In January, the Harvard Journal of Law & Public Policy published an account by two Washington lawyers, Martin B. Gold and Dimple Gupta, of what they called the ”constitutional option.” For more than a century, the Senate frequently resorted to parliamentary tactics to impose majority rule — most recently by Bob Byrd.
Byrd, who entered political life as a Ku Klux Klan member, in the ’60s was a conservative Democrat, and was delighted when Richard Nixon listed him as a possible Supreme Court nominee. Byrd’s next role was as the hard-driving majority leader rolling over liberal dissenters. He since has taken a rapid trip to the left, with the radical MoveOn.org raising big money for his 2006 re-election.
Gold and Gupta cited four instances where Byrd had amended Senate rules with majority votes. Byrd ignored this report for two months until Republican Sen. Orrin Hatch on March 10 went on the Senate floor to discuss the four cases. It took 10 more days for Byrd to respond to Gold, Gupta and Hatch by denying the past: “Their claims are false . . . they are dead wrong. Dead wrong.”
The DailyKos however, lays out a great case for why this example should not apply as justification to invoke the Nuclear Option in the coming week. If interested in this topic I strongly urge you to read this whole argument, but here is the concluding paragraph:
Are you getting the point? Good, because I’m tired of letting Gold and Gupta make it for you. The “constitutionality” of the “constitutional option” appears to rest on the Senate’s alleged “right” to adopt new rules for itself under general parliamentary procedure at… the beginning of a new Congress. Which is, of course, not where we are today, and therefore, why the Senate’s “constitutional rights” are neither the actual theoretical basis of the nuclear option, nor likely to be addressed in Frist’s point of order or what will likely be Cheney’s baseless ruling in it.
As I understand it, the basic argument here is that rule changes should only occur at the beginning of the game (i.e. congressional session) and shouldn’t be changed in the middle when things aren’t going the way of the majority.
People for the American Way summarizes the argument against the Nuclear Option here. They include steps you can take to hopefully have influence on the outcome if you believe its worthwhile to fight this possibility. Also Newsweek has a terrific article by Howard Fineman on how this will affect the 2008 Presidential election. After all, the ENTIRE reason we are even having this discussion is because it pertains directly to the 2008 election.
You know what would be really cool? If Dimple Gupta is Sepia Mutiny reader and will weigh in on this for us.
I can hope… 🙂
A Jew and a Hindu! Where did good ol christian fundies run away to ?
I was just reading that they’re doing this (elimninating the filibuster on j. nominations) now in order to spare the fight later with supreme court nominations. Which is a very scary proposition.
Anyway, questions of legality aside, this is a blatant move to promote majoritarianism and override American political tradition. You can make an argument that the filibuster in general is pretty anti-democratic (and the entire senate, actually, which i saw argued in harpers or atlantic monthly a few years ago), but the context in which they’re doing this is so heinously protofascistic it’s gross.
For so-called conservatives, these people seem to be more than open to radically overhauling the way that things work in the government and in society to meet their particular ends.
They are doing this simply so that they can placate the religious right wing and appoint right wing activist judges. The fact that the Bush admin forwarded a black man and a woman with extreme judicial positions for appointment is the most cynical statement of all. This way they can claim the Dems are not accepting of African Americans and women.
What is up with all these ultra-conservative minorities…they seem to be the flavour du jour. They are popping up like reality shows, enough already…its sort of played out….
Gupta used to be a member of the Federalist Society, the leading “conservative” organization of lawyers, law students, and professors. Assertedly, their policy is to go back to the Founding Fathers’ original intent in matters of public policy, which includes Federalism.
How ironic then, that Madison in Federalist No. 10, and elsewhere, vehemently argued against the openly majoritarian stance espoused by Gupta and Gold! Majoritarianism, which is clearly what the Gupta article and the whole anti-filibuster movement is about, is totally antithetic to the theory behind the American Constitution. As Saurav mentioned, this is hardly about “conserving” tradition, but on the contrary is analogous to “judicial activism” of the worst kind!
Hypocrites!
p.s. Dimple…if you are reading this….Fine, even assuming you owe no allegiance to the millions of structurally disadvantaged and economically deprived minorities out there, even from a purely self-interested perspective: you are both brown and a woman….are you sure majoritariansim is the best philosophy for congress to espouse??
In other news… As a result of the baseball steroid ban, all the sluggers are struggling to hit homeruns. Therefore, MLB has decided to bring the fences in by 50 feet. Teams with more than two sluggers, big contracts, and slumping numbers will be allowed an extra 5 feet. The New York Yankees will be allowed an extra 2 over the total of 55 since they generate the most revenue. Instead of waiting for the offseason, these changes are effective immediately. Protests from small ball teams like Oakland have been filed with the league.
If you agree to a set of rules, you cannot change them when they become inconvinient.
The constitutionality of the rules changes has nothing to do with when the changes take place. As far as fairness is concerned, if someone doesn’t play by the rules you have to make adjustments. The Democrats decision to filibuster judicial nominations is unprecedented- never before has this been done in the history of the Senate, either by Republicans or Democrats. It’s a shame it’s come to this, and I understand the frustration of Democrats who are out of power. However, in all frankness, their remedy should be to start winning some elections rather than trying to jam the system and block the will of the people.
-Bob MinorityRetort http://www.minorityretort.com
…rather than trying to jam the system and block the will of the people.
What a load of crap. Do you actually believe what you are saying? It is isn’t the WILL of the people to have one of the three independent branches of government loaded with idealougues. A large majority of Americans disagree with the ideology of the few judges that are currently being filibustered. There was an excellent editorial in The Nation which explained why it makes more sense to do away with legeslative filibusters rather than judicial filibusters. If a bad piece of legislation is passed by the majority than as a check the judiciary or later congressional sessions can change or overturn it. Once you have subverted the judiciary by stacking it with judges that hold view OUTSIDE of the mainstream however, you have weakend our system of Checks and Balances. The founding fathers understood this and even in the Federalist Papers describe that the power of the majority should be checked. This is exactly the reason why that the Constitution does not spell out that only a majority is needed to confirm a judge.
If you want to show party loyalty and tow the party line, than feel free. Don’t however use silly statements that talk about “the will of the people,” when that has nothing to do with the argument.
Nation Editorial: http://www.thenation.com/doc.mhtml?i=20050321&s=legum
Media Matters already took this argument apart as did the Senate Democratic Caucus. In case you don’t feel like clicking, the first use of procedure to block a judicial nomination that it cites is a (successful) attempt to keep LBJ from elevating his choice of Supreme Court Justices to Chief Justice.
Also, something that doesn’t get stated enough is that the Demoracts (and one independent who apparently felt so alienated from the Republicans that he chose to leave the party) have blocked 10 of over 200 nominations! The rest have all gone through–I think that’s enough deference to a President who was elected without the popular vote but chose to govern from the extremes of his party, including in his judicial nominations–which is much more unpredented than a filibuster of a judicial nomination. As you put it well, “as far as fairness is concerned, if someone doesn’t play by the rules you have to make adjustments.” That’s what the Democrats are doing, and they’re doing it by the letter of the law.
Of course, I would personally advocate further “adjustments”–like commuting the sentences of everyone on death row. Are you with me, Bob? Or does deference to the need for change end in the Senate?