I just did the "Midday" show on Minnesota Public Radio, talking about the Constitution and the filibuster. It's always strange to do radio over the telephone while sitting at home. Suddenly struck by hunger ten minutes before I was to go on, I fried up an egg and made a sandwich, hoping to get it eaten before I had to go on. The station calls, then puts you on hold, where you can listen to the show as it approaches your segment. I extracted the info about how much time I had, so I knew when they got to the weather, I needed to swallow. Fortified by egg -- freshly hot-fried egg -- I tried to answer the question of what the Constitution says about the current filibuster controversy.
I should listen to it myself to see what I actually said, but my basic point was that the Constitution doesn't say anything more than "Advice and Consent," and the Senate itself needs to define its own role. Is it purely a political struggle? I think it is, almost entirely. One can refer to general constitutional ideas about balancing and checking power, but in the end, you still have to take responsibility for saying when there is a proper balance and how much one branch should check another. The assertion that the Constitution already tells us the answer is just rhetoric.
The show is live-streaming now, but I think there will be a recording eventually: here.
UPDATE: The recording of today's show is up now. I'm on starting at 27:53 for about 4 minutes. Enjoy!
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I would agree that the filibuster debate is purely political. There really isn't a principled position on the matter. In the end you will not get any sympathy from the voters for being "principled" or voting your conscious on the filibuster. There is no absolute truth in a procedural rule!
The voters will not unerstand a "principled position" in upholding the the filibuster. Instead they understand voting yes or no on conservative judges. This is why the Senators, being elected, will choose in the end to vote the polls. If you are a Republican you really don't have much to lose by voting to end the filibuster and a lot to lose by voting against it. If you aren't really a Republican or you require a substantial number of democrats to vote you into office, such as Lincoln chafee, its probably better to vote against it.
I would make it unanimous that this is a political and not a constitutional discussion.
The unanimity seen here thus far, I would guess, is fairly reflective of the opinion in the country as a whole.
Most people view those who advance their various filibuster positions on "constitutional" grounds as being ridiculous. We all know that this debate isn't about the Constitution, but is political jockeying in anticipation of Chief Justice Rehnquist's retirement from the Supreme Court. Period.
I completely agree that there's no "constitutional" argument for or against the fillibuster. The joy of our Constitution on this point is that its language is simple and susceptible to various interpretations.
But it's not about Rehnquist--honestly, his replacement can't be that much further to the right than he is. It's about Stevens and/or O'Connor.
I have a one word response to what you said about Rehnquist, Matt: Hibbs.
I'm not familar with Hibbs. Can you enlighten? It's my view that:
A) Anyone much further to the right of Rehnquist would be highly unlikely to get 50 votes in the Senate (there'd be at least 47-48 no's, with Chaffee and Specter both likely to defect).
B) Rehnquist's seat doesn't "balance tip" in the same way O'Connor or Stevens does. Replacing someone on one side of the balance with a person of the same balance maintains the status quo.
Matt: Here's a post on the subject. And here's a big article of mine on the subject. Hibbs is the Family Medical Leave Act case.
I think the Democrats started this under the assumption that Bush would be a one termer and now its dragging into a second term (horror horror!)
Do most Americans understand the whole issue of presidential appointments and what advise and consent means in regard to the issue of judges? I think not, and that's a big part of the problem since they won't be learning it in school or from the media.
To the extent party discipline is strong, we only have the voters to thank for any balance of the executive by congress, because when one party controls both branches the White House and the Capitol might as well be one building. Did the framers really want government by party? I'm an ignoramus regarding political history, but still I feel sure they didn't. The fact that a judge doesn't register with a party is no hedge against a covert political leaning. I believe the framers didn't want the administration of justice to be tilted in any way, and one of the few ways we have to ensure that is by requiring bipartisan approval of judges. The fact that it's the president who initiates the process with a nomination is incidental.
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