The Judicial Filibuster

Filibuster reform is all the rage in the progressive blogs these days. I am not a fan of filibuster reform at this time for results oriented reasons. Now is not the time to make the passage of legislation easier, given the extreme GOP controlled House and a supine Dem President.

But I also have an objection on the philosophical merits to filibuster reform regarding judicial nominations. My old law professor Bruce Ackerman revisits this issue and turns back to an article he wrote in 2005, when opposing filibuster reform was all the rage in the progressive blogs.

My objections are, and were in 2005, as a matter of substance, to elimination of the filibuster to lifetime appointments to the Third Branch of our government, the Supreme Court. As Professor Ackerman says, "[m]y bottom line: the separation of powers should become a fundamental part of serious talk about the filibuster."

Speaking for me only

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    Think now (5.00 / 1) (#2)
    by jbindc on Wed Jan 05, 2011 at 05:09:30 PM EST
    is a good time to get rid of the Senate?  Leave all legislation up to Boehner?

    It's a price worth paying (5.00 / 0) (#3)
    by andgarden on Wed Jan 05, 2011 at 05:11:09 PM EST
    for the future. Wyoming should not have equal representation to California in a modern legislative body.

    Hmmmm (5.00 / 1) (#4)
    by jbindc on Wed Jan 05, 2011 at 05:13:13 PM EST
    Then the whole country would run on what California, Texas, and New York wants.

    No thanks.


    What kind of republic (none / 0) (#5)
    by andgarden on Wed Jan 05, 2011 at 05:17:47 PM EST
    values the votes of some individuals hundreds or thousands of times more than others? The principles of Reynolds v. Sims apply with equal force at the national level:

    Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.

    Well, then (5.00 / 1) (#6)
    by jbindc on Wed Jan 05, 2011 at 05:26:13 PM EST
    You'd have to get rid of districts, because representatives try to "bring home the bacon" for their district (if the people benefit, that's a bargain).

    Sheer numbers would tell you that California, New York, and Texas would have more representation and would thus be able to vote in ways that serve the interests of their constiuents and not what necessarily serves the people in Iowa, Florida, Ohio, or even Wyoming.

    I just don't see it as being actually feasable on a national level with the size of our country.


    It doesn't follow (5.00 / 2) (#7)
    by andgarden on Wed Jan 05, 2011 at 05:44:54 PM EST
    that the interests of the big states are so similar that they would be able to do anything in the House without input and support of members from small states. Nor does it follow that you have to get rid of districts.  Your examples are especially odd because, given the oddities of apportionment in a House of 435, Florida is will be better represented than New York in the next Congress.  

    More to the point, in my scheme the states are essentially irrelevant, and representation would be based on population, with the state origin of a particular representative having no more significance than his constituents attached to it.


    Right (5.00 / 1) (#8)
    by jbindc on Wed Jan 05, 2011 at 05:46:51 PM EST
    So the wishes of people in big cities would outweigh those in rural districts because they have greater population.

    I still don't see that your idea would work.


    I don't see what your objection is (5.00 / 1) (#9)
    by andgarden on Wed Jan 05, 2011 at 05:48:48 PM EST
    If the wishes of people in big cities outweigh those in rural districts, it would only be because there are more people in cities.

    Rural areas do not have a god given veto over policy.


    No, but (3.50 / 2) (#10)
    by jbindc on Wed Jan 05, 2011 at 06:05:39 PM EST
    A percentage of people in big cities (not even all people in those same big cities) should not get to determine national policy for everyone, esepcially as many times, people who never venture out of their big cities simply have no clue as to how most people have to live and work in the rest of the country.

    No, I definitely don't want people in NY and LA making all the decisions for me and for this country.

    I think this puts it best:

    The way the Senate operates also means that any senator with the brains and guts to hamstring George W. Bush's blustering the country into war in October, 2002 could have done so. (But alas, there was no such senator.) It is a system designed, for good or ill, to permit a minority -- sometimes tiny -- to interpose itself, as obnoxiously or as honorably as they may choose.

    Eliminate all that, and what do you get? You get the House of Representatives. If you want to fix the gridlock problem in Congress and fix it good, the best thing to do is to eliminate the Senate.

    It's a bad idea if you like democracy. As designed, the Senate has an important role: cooling the heels of excess, either from an overreaching executive or the House where the majority can run any tyranny it pleases.

    You don't have to agree with his politics to see that it would be anti-democratic in the utmost way to let an institution like the House of Representatives be the only legislative body we have.



    You're making an argument (none / 0) (#11)
    by andgarden on Wed Jan 05, 2011 at 06:08:01 PM EST
    for something other than representative democracy. That's fine, but it's not what I want.

    How? (5.00 / 1) (#12)
    by jbindc on Wed Jan 05, 2011 at 06:14:33 PM EST
    You comment makes no sense.  The only way your theory works (maybe -  a BIG maybe) is if you revamp the House to, well, be more like the Senate.  Extend term limits, have fewer districts, etc. As it is right now, House members basically fly by the seat of their pants on much of the legislation they pass.  The House is basically like the JV team, tring to make a fast impression, but running into walls like a chicken with it's head cut off.

    If you have to change the body itself to be more deliberative, then what's the point of getting rid of the Senate?


    Almost every other Democracy (none / 0) (#17)
    by andgarden on Wed Jan 05, 2011 at 06:22:17 PM EST
    in the world has a more representative legislature than we do.

    To be honest, you're spewing out objections that have absolutely nothing to do with my point about fair representation.


    So explain it (none / 0) (#20)
    by jbindc on Wed Jan 05, 2011 at 06:38:54 PM EST
    Your way will not work.

    What do you mean? (none / 0) (#21)
    by andgarden on Wed Jan 05, 2011 at 06:40:48 PM EST
    Is Great Britain not a functioning Democracy? Canada?

    They're Socialists--so they don't (5.00 / 1) (#24)
    by MKS on Wed Jan 05, 2011 at 06:52:05 PM EST

    Mmm.... (none / 0) (#47)
    by jbindc on Thu Jan 06, 2011 at 01:14:10 PM EST
    Interesting, since Britain and Canada are both bicameral governments (sound familiar?), and are, by the way, part of a constitutional monarchy where the power of the executive, legislative, and judicial branch still are founded in the Crown.

    Look at the power and composition (none / 0) (#48)
    by andgarden on Thu Jan 06, 2011 at 01:23:52 PM EST
    of their chambers. Just for starters, research the Parliament Act.

    you also assume (none / 0) (#35)
    by CST on Thu Jan 06, 2011 at 09:36:32 AM EST
    people in cities/large states across the country agree on things.  But that's really not true either.  And there is still significant population outside of urban areas.  Even if you take a state like NY, upstate has about as much influence on state elections as the city does, state-wide elections are often a battle between the two.  So it's not like all your NY representatives are going to be focused on the needs of city-dwellers either.

    Rural vs Urban interests (none / 0) (#37)
    by sj on Thu Jan 06, 2011 at 10:39:28 AM EST
    They are not the same thing.  And neither one should be weighted greater than the other.  Conceptually, I believe in the function provided by the Senate.  This may sound silly seeing as how so many Senators are personally privileged, but the Senate itself, it seems to me,  is --  effectively -- Affirmation Action at the civic level.

    I happen to believe in Affirmation Action.


    I wasn't aware (none / 0) (#38)
    by CST on Thu Jan 06, 2011 at 10:53:56 AM EST
    that rural areas were at a historical disadvantage.

    Affirmative action is not actually about protecting the minority.  Consider - the people who benefit most from affirmative action programs are women.

    Also, this isn't just about rural vs. urban.  Someone who lives in a rural part of Texas is under-represented as compared to someone who lives in Providence, RI.

    And I also doubt the idea that somehow NY, CA, and TX would end up running the rest of us.  That's certainly not how it works in the house today.


    Really? (none / 0) (#39)
    by sj on Thu Jan 06, 2011 at 11:26:17 AM EST
    Thanks for your comment.  It's helping me to clarify my own thinking.

    You're right that Affirmation Action isn't about protecting the minority.  It's about extending a hand to those who are starting out behind the curve in an effort to create a more level playing field.

    Does the "historical disadvantage" aspect have an analogue in the civic arena?  I guess, sort of.  I guess I was thinking about where I grew up which was semi-rural as opposed to rural.  And I can tell you that a nearby city can suck up your resources without even blinking.  Including your major asset, in fact:  the land itself.  

    I really believe that the next great battle for resources will be over water and water rights.  The interests of urban and rural will really need to be balanced.  

    [sigh] It will require wisdom.  And we're working with these guys.  We're doomed.


    I agree that there are going to be (none / 0) (#42)
    by CST on Thu Jan 06, 2011 at 11:44:46 AM EST
    some very hard questions in the future about land use and delegation of resources.

    But most of that will play out on a local level, with individual states and towns being the major decision makers (along with planners and developers of course).

    The federal government can influence it to some degree, but they aren't really the key.

    Also, I think right now on a federal level, you have an outsized influence of the "big money" rural groups (mega-farms).  That is not necessarily about protecting land or the needs of your average rural resident.  Of course, I guess the same thing can be said about the "big money" urban influence - but at least that's a somewhat more diverse group of interests.


    There is more to this ... (none / 0) (#41)
    by sj on Thu Jan 06, 2011 at 11:39:30 AM EST
    ... than just policy.  There are actual assets at stake as well.  Physical things that can be touched.

    Still, I can my thoughts on this aren't fully baked yet.  I need to ponder.


    as opposed to what we have now (5.00 / 1) (#34)
    by CST on Thu Jan 06, 2011 at 09:33:46 AM EST
    where the wishes of people in rural districts outweigh those in cities.

    That's essentially the current system in the senate where Wyoming gets as many votes as New York.  A person in a rural state gets waaaaaaay more representation than a person who lives in a state with cities.  But your ok with that?

    Under the "andgarden" system, every person gets the same amount of influence.  And if you keep districts, people in rural areas will still have representation.

    Sure someone in LA might not know anything about how things work in rural MN.  But the same thing is true the other way around.  People in rural MN don't understand the needs of people in LA.  And as of right now, the needs of people cities are grossly under-represented in congress.


    It was a conscious choice on ... (none / 0) (#40)
    by sj on Thu Jan 06, 2011 at 11:36:00 AM EST
    ... the part of the founders.  And one I understand.

    A person in a rural state gets waaaaaaay more representation than a person who lives in a state with cities.

    Definitely true in the Senate.  Not true in the other part of that compromise:  the House of Representatives

    As I think about this, though, I need to examine my own assumptions.  I've always thought about this in terms of rural vs urban interests.  But it really isn't exactly.  It's granting strength to the States in an effort to moderate or weaken federal influence upon those states.

    I dunno.  At this point in time and space I have no wish to lose the Senate.  OTOH there are a number of Senators that I would happily lose.


    Indeed, that was the choice (none / 0) (#45)
    by andgarden on Thu Jan 06, 2011 at 12:41:07 PM EST
    But the population disparities at the time did not even begin to approach what we have today. Moreover, the Connecticut compromise made a number of other "conscious choices" that nobody could seriously defend today. I assume I don't need to enumerate them.

    It would be interesting.... (none / 0) (#18)
    by MKS on Wed Jan 05, 2011 at 06:29:44 PM EST
    I'd (none / 0) (#26)
    by Ga6thDem on Wed Jan 05, 2011 at 07:08:36 PM EST
    certainly be willing to completely get rid of congressional districts and vote state wide for representatives but I'm not really sure how that would work.

    Bad idea (none / 0) (#27)
    by andgarden on Wed Jan 05, 2011 at 07:09:35 PM EST
    I'm sure you know what the result of that would be in Georgia.

    Now, some form of proportional representation would be wise, but we'd have to think long and hard about how to do it.


    I've thought about that (none / 0) (#28)
    by Ga6thDem on Wed Jan 05, 2011 at 07:15:03 PM EST
    but the districting isn't all that great either. There are a lot of people who don't have representation now either. What I was thinking of was maybe they could pick the top 11 vote getters or something. Like I said, I'm certainly not sure how that would work so everybody could get representation. Right now I have Tom Price and he sucks. He only cares about a certain segment of the population and that's it.

    I think ideally you'd go (none / 0) (#29)
    by andgarden on Wed Jan 05, 2011 at 07:20:20 PM EST
    to some kind of statewide party list system and apportion the representatives proportionally. To make that work in a sane way, you'd have to increase the size of the house, though. (As we saw in the Democratic primary, this system also has its pitfalls).

    We could have a General Assembly just (none / 0) (#14)
    by MKS on Wed Jan 05, 2011 at 06:17:15 PM EST
    like the French in 1792....

    Seems to me (none / 0) (#19)
    by jbindc on Wed Jan 05, 2011 at 06:38:07 PM EST
    They ended up getting a dictator not long after that....

    I think that (none / 0) (#22)
    by Zorba on Wed Jan 05, 2011 at 06:46:42 PM EST
    MKS was being snarky, since that period of the General Assembly was not exactly stable.    ;-)

    1789 started out okay..... (none / 0) (#23)
    by MKS on Wed Jan 05, 2011 at 06:51:00 PM EST
    LOL! (none / 0) (#25)
    by Zorba on Wed Jan 05, 2011 at 07:06:52 PM EST
    Well, up until July 14, at any rate.  

    Particularly considering (none / 0) (#32)
    by Militarytracy on Thu Jan 06, 2011 at 09:15:23 AM EST
    that Wyoming is so big landwise and the population so small, it encourages and nurtures psychotically anti social behavior.  Just kidding....sort of, trying to

    The Dems could have avoided (5.00 / 0) (#15)
    by MKS on Wed Jan 05, 2011 at 06:19:37 PM EST
    the filibuster last term by greater use of reconciliation....

    The filibuster rules were not the main problem....

    Obama should have just made 10 recess (none / 0) (#30)
    by magster on Wed Jan 05, 2011 at 07:35:14 PM EST
    appointments are enacted some enviro-loving executive orders every time a filibuster was used.

    Thank you for weighing in on this (5.00 / 1) (#33)
    by Militarytracy on Thu Jan 06, 2011 at 09:19:40 AM EST
    Strategy in many political areas is not something I easily grasp.  I get narrow visioned, it is my inner activist.  I read all of this rosey gorgeous prose about filibuster reform and it sounds great while my stomach is in knots, and you pointing out that the crazy crazy Republicans run the House now and my President is supine is exactly why that is so.

    I also disagree (5.00 / 1) (#36)
    by Big Tent Democrat on Thu Jan 06, 2011 at 10:27:34 AM EST
    with the idea of making confirmation of Supreme Court nominees easier on the merits.

    It is basically incontestable (none / 0) (#1)
    by andgarden on Wed Jan 05, 2011 at 05:06:26 PM EST
    that the Senate could run itself by majority vote at any time for any reason, assuming that a majority of the body wanted to.

    I think protecting minority rights in a body so malapportioned by nature is a wise priority. However, I don't think that Rule XXII does a very good job of doing that in practice.

    Ultimately I want to see the Senate abolished or neutered. In its current form, it is not supportable by any principle of Democratic government.

    Disarm now that Dems (none / 0) (#13)
    by MKS on Wed Jan 05, 2011 at 06:16:06 PM EST
    have no chance of passing any progressive legislation through the House?

    Filibuster reform only helps Republicans in the short term.  And in the long term, it would be good to use the filibuster against Republican Suprmeme Court picks...

    2010 bio of Justice Brennan: he was (none / 0) (#31)
    by oculus on Wed Jan 05, 2011 at 09:12:23 PM EST
    upset by the animosity over the Bork nomination to SCOTUS.  His biographers are of the opinion the problem Bork faced was he had written too much stuff that was available to the Senate judiciary comm.

    P.S.  I had forgotten Bork was the Nixon DOJ person who actually carried out the Sat. Night Massacre after others superior to him refused the order to ax the special prosecutor.

    The present reform proposal . . . (none / 0) (#43)
    by rea on Thu Jan 06, 2011 at 12:08:38 PM EST
    . . . does not eliminate the filibuster, but makes it more difficult and inconvenient to filibuster something.  I think the practical effect would be that any particular bill or nomination could still be filibustered, but that it would be impossible as a practical matter to tie up a whole legislative session by filibustering everything, which of course is what we have seen for the past two years.  That strikes me as the ideal result.

    not a bad idea (none / 0) (#44)
    by CST on Thu Jan 06, 2011 at 12:12:43 PM EST
    like a yearly limit.  Like the "challenge" flag, you have to save it for the stuff you really care about, you can't just throw it every time you don't like a call.

    It protects us from the really egregious stuff, but still lets the senate get stuff done.


    Where are the details (none / 0) (#46)
    by sj on Thu Jan 06, 2011 at 01:06:36 PM EST
    of the current proposal?  Does it include the the requirement to actually filibuster instead of just "signalling"?

    The details . . . (none / 0) (#49)
    by rea on Thu Jan 06, 2011 at 02:13:37 PM EST
    . . .can be found here.

    And yes . . . (none / 0) (#50)
    by rea on Thu Jan 06, 2011 at 02:15:52 PM EST
    . . . it would require an actual talking filibuster, which is why I think its practical effect would be to eliminate routine filibusters of everything.