Tuesday, May 24, 2005

The Filibuster Compromise

I've written about filibusters a number of times. I stand behind this one, from November, the most , where I point out that we are not a democracy, we are a republic, and filibusters are the way that a minority of states (although not always a minority of the people) avoids being rolled by a majority of the states (states like North Dakota, South Dakota, Wyoming ... 6 senate votes for a combined population less than Queens County, where I live.]

I also said, in that entry that "States Rights Are For Losers." I also wondered if direct election of Senators are such a good thing.


I wrote the earlier portion of this entry a few days ago, and left it off as too depressing to complete. Now, I awake to read that the moderate Senators have manufactured a compromise . Apparently, Frist and Reid have grumbled a lot, but have signed off on it.

On the face of it, the Republicans seem to get most of their bottled up nominees voted on, and presumably approved. The Democrats promise not to filibuster except in "extraordinary" circumstances. "Extraordinary" is one of the great weasel words, but never mind.

I haven't read anything else this morning, and I haven't read the spin yet, so I am writing this outside the echo chamber.

I don't know what this all means: Maybe it means, in no particular order ---

1. Maybe Frist knew that he needed a way down from the tree limb -- he got as caught up in the echo chamber as we do in the blogosphere -- he discovered that the real power sources -- hopefully the great millions of us voters, but more likely the corporations -- did not want to fight this fight at this time. So he told his moderates to go make the deal.

2. Maybe the Republican Senators understood that anything that reduces the Senate to a pure majority vote reduces its power. Don't dismiss the fact that a lot of very conservative Republican Senators felt placed in a difficult dilemma -- the President had argued for reducing the power of the legislature in a democracy, and the President's argument had resonated with a lot of people. The Conservative Senators had no good way of getting out of the box, but they wanted one. Because Rule No 1 in the Senate is maintain and increase your power. It is also Rule No 2 through 1,000,000. Now they can safely vote against the McCain Compromise (or whatever it is called), without worrying that the nuclear option will really come to pass.

3. Majority votes are what the House of Representatives are for. "Judges deserve an up-or-down" vote is wrong. It is not immoral, it is not evil. It is wrong because (a) it is not what the Framers had in mind ("advise" includes the power to bottle up) and (b) mostly, it won't work. It will not make for better judges, only for more consistently ideological ones. It will not increase the legitimacy of the judiciary. It will not increase the legitimacy of the legislature. I still do not have that all reduced to a postage stamp. Fortunately, I don't have to reduce things to postage stamps for a living. Those that do, however, had better get cracking.

4. Hopefully, this will mean that the successor to Rehnquist, and more importantly, the sucessor to O'Connor (if she is the one who is leaving) will be fought over with the old rules. I think the Republicans are going to have the votes anyway. If they don't, and if they decide to employ the nuclear option there, well, at least the public will understand what's going on, and why this issue really is important enough to stop the nation's business over. I don't know what people will think then.

5. Nerd note. I have argued that the modern filibuster issue is based on the imbalance caused when you create an institution based on the power of the state legislatures, and amend the Constitution to call for direct election of Senators, but fail to make the other conforming changes.

Professor Bruce Ackerman argues that the nuclear option problem stems from the failure to make conforming changes when they adopted the 12th Amendment, essentially abolishing the separate election of a Vice President after the Jefferson-Burr debacle. Ackerman argues that the Founders took the role of the Vice President seriously, because they expected him to be the losing Presidential candidate. By amending the Constitution without limiting the Vice President's potential power over the Senate, they inadvertently left a path where the Executive, through the Vice President, can exercise encroaching power over the Congress. This structural glitch had been ignored -- but not by Dick Cheney.