This was a very interesting read. What do you all think???
http://www.washingtonpost.com/ac2/wp...nguage=printer
washingtonpost.com
Filibusters: Whose Rule, and Whose to Change?
By Charles Lane
Washington Post Staff Writer
Friday, May 9, 2003; Page A13
With an obstinate Senate minority filibustering a popular president's agenda, a leading legal mind of the president's party took to the op-ed pages to declare that "a strong argument can be made" that the filibuster is unconstitutional. He urged his party to fight the issue all the way to the Supreme Court, if necessary.
Sound like the latest Republican broadside in the battle over President Bush's judicial nominees? Actually, the op-ed articles appeared in 1993, amid a battle over economic policy between President Bill Clinton, a Democrat, and a Republican Senate minority. Their author was Lloyd N. Cutler, the Democratic superlawyer who would later serve as Clinton's White House counsel.
Clearly, constitutional doubts about the filibuster predate the current rumblings among some Republican senators about filing a federal lawsuit to settle them. And, clearly, those doubts have sometimes been raised for partisan convenience. But as Cutler's op-eds -- framed as sober, nuanced legal arguments -- showed, it is a serious debate about constitutional first principles as well.
That may mean that the latest battle over the filibuster is only beginning. Senate Democrats have used it to prevent votes on Bush's nominations of Miguel Estrada and Priscilla R. Owen to the federal court of appeals -- but they could be setting the stage for a more fateful battle over a Supreme Court seat, if any justice leaves the bench.
The origins of the filibuster are disputed, but it dates at least from 1806, when Senate rules held that any senator could prolong debate indefinitely, thereby preventing a vote. In 1917, the Senate adopted the cloture rule, permitting debate to be ended by a two-thirds vote, and later reduced that to 60 votes.
The filibuster -- tainted by southern senators' use of it to block civil rights legislation -- historically has been criticized as anti-majoritarian and hence unconstitutional. Such a critique underlies both Cutler's 1993 op-eds and the contentions of today's Republicans, although Cutler opposed filibusters generally and today's Republicans have targeted filibusters of judicial nominations.
Because it takes 60 votes to cut off debate, the argument goes, a filibuster creates a super-majority requirement in situations in which the Constitution envisioned a simple majority vote. When the framers wanted a supermajority -- such as the two-thirds vote required for treaty ratification -- they said so.
Republicans argue that in the case of judicial nominations, the filibuster permits the Senate to go beyond "advise and consent" and usurp the president's responsibility for making nominations.
"Abusive filibusters against judicial nominations uniquely threaten both presidential power and judicial independence," Sen. John Cornyn (R-Tex.) said at a hearing before a Senate Judiciary subcommittee Tuesday, "and are thus far more legally dubious than filibusters of legislation, an area of preeminent congressional power."
Just as insistently, defenders of the filibuster have noted that Article I, Section 5 of the Constitution clearly gives each house of Congress the power to "determine the rules of its proceedings."
Defenders ask: If the majority has a "right" to vote on every nominee, as Republicans assert, then what about the many other non-majoritarian rules of the Senate, such as the power of a single senator to place an anonymous "hold" on a nomination, or even the committee system, which regularly bottles up legislation before the majority can vote on it?
"There's never been a moment in the history of the United States when the Senate has recognized that a majority has an entitlement to render a final vote on judicial nominations," said Michael Gerhardt, a professor of law at the College of William and Mary.
The filibuster's counter-majoritarian nature is one of its virtues, defenders say. At times, it takes a determined minority to defend unpopular but important values.
Also, defenders say, the prospect of a filibuster promotes centrist legislation -- and centrist judicial appointments -- since the more moderate the proposal, the less likely it is to provoke a filibuster.
Any attempt to resolve this dispute in the courts is likely to raise difficult questions of judicial involvement in politics. Yet no Senate rule, including the 60-vote filibuster rule, can be changed, except by a two-thirds vote.
Some conservative legal thinkers who concede that the filibuster is constitutional say this is the real problem, because it means that each Senate is bound by decisions made by a past Senate.
"New senators' voices are totally unrepresented in these rules," said Douglas W. Kmiec, dean of Catholic University's Columbus School of Law. "They have no way to break out of the rules that have been imposed on them."
Kmiec and others suggest adapting a scenario first suggested to the Democrats by Cutler in his 1993 op-ed commentaries. The Senate Rules Committee could approve an amendment of the filibuster rule; a simple majority could vote in favor of it; and then a member of the majority (today, a Republican) could raise a point of order claiming that a simple majority is sufficient, both to pass the rule and limit debate on it, on the grounds that the two-thirds requirement is unconstitutional. The Senate's presiding officer -- currently Vice President Cheney -- would refer that to a vote, where the Republican majority could pass it.
Then the Democrats would have the option of going to court, including, ultimately, the Supreme Court, where the justices would face the question of whether to intervene on a legal issue every bit as arcane, and politically freighted, as the one they wrestled with in Bush v. Gore.
Such a case would ask them to determine how easy it should be for Bush to name their subordinates in the judiciary and, in time, their own successors.
© 2003 The Washington Post Company
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