Good Question.

One of the likely scenarios for the nuclear option involves Vice President Cheney, in his capacity as President of the Senate, ruling that it is unconstitutional to filibuster judicial nominees. After running through some of the Constitutional questions that might be asked about this position, Paul Horwitz (via Discourse.net) asks a very good question:

"What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees. Nor, for reasons I hope I have demonstrated, is it enough to stop there? What constitutional conclusions has he reached on all these other questions? The failure of the press to push for answers on these questions is really disappointing -- inexcusable, in fact. It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way.

What accounts for this silence? I don't think it is simply that this level of detail is reserved for law geeks. I think it says something about how we think about the Constitution as applied outside the courts. The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party. Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter.

But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote. At least it is not supposed to be. It decides a constitutional question -- and one that, at that, would likely be insulated from judicial review. The Vice President, along with the members of the Senate, takes an oath to "support this Constitution," and we ought to assume he takes it seriously. That means that, finally, only his views will matter -- not those of Senator Frist, or his lawyers, or the public, or even the President. Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences. Is the same any less true of any other government officer faced with the duty of interpreting the Constitution? In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable. It speaks to an unbecoming cynicism about the role of the legislator or parliamentary officer. These officials, just as much as judges, can be oathbreakers, and that ought to mean something. At the very least, by acting as if these questions mean something, we attempt to ensure that they do. "

This is absolutely right. The post is worth reading in its entirety.

Comments

[carsick]

I don't think Cheney would answer the question before hand nor that the Democrats would be given a platform in which they could demand an answer.
I do think though that if it comes down to the VP making the deciding vote that the electorate will feel all the more cynical about the motives.
"200 years of precedent were unconstitutional? Yeah right! Vote the bums out." Obviously the 'bums' in this case will be congressmen and women who partake in the cynical manipulation.
Actually, the fillibuster is probably the only chance prior to the 2006 election season when the press and the populace will be given a platform to both demand answers, call for accountability (when people are actually listening) and set out their legislative goals.
Otherwise, I think the Democrats will be wetting their powder if they begin to set out their agenda this far in advance of the election season. The republicans are salivating at the chance to change the focus to one of attacking the democrats and their agenda. There is nothing to gain for democrats by allowing the republicans to shift the focus from their current woes and cynical power grabs and almost sinister lunges toward both the Dobson's and the Walmart/Halliburton's.

[carsick]

Oops. typing too fast and thinking too slow.
"...the fillibuster is probably the only chance prior to the 2006 election season when the press and the populace will [allow the Democrats]...a platform to both demand answers..."

[praktike]

Cheney has been giving speeches about this hasn't he? I heard some clips on the radio the other day.

BTW, I applaud the ability of this fellow and others to type long, thoughtful pieces on this subject. I find myself reduced to just call them a bunch of lying wankers and having done with it.

[Marrty]

In my opinion the true reason behind the Republican desire to extinguish the filibuster rule has as much, if not more, to do with the Vice Presidency, rather than with judges. Thus, Cheney's silence. Although we have recently heard and read about Cheney thinking about running for President in 2008, I do not believe it. It's a red herring. Rather, I suspect that after the filibuster is done away with, Cheney could step down, and that office will be vacant. What happens then? The 25th Amendment, Section 2, to the United States Constitution kicks in. It provides:

"Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress."

Thus, with the filibuster out of the way, Republicans can walk in their pick. If the filibuster remaines intact, the Democrats have a say. It may be that simple.

[Gary Farber]

"Thus, with the filibuster out of the way, Republicans can walk in their pick. If the filibuster remaines intact, the Democrats have a say. It may be that simple."

I have nothing to offer on this at present beyond purely subjective opinion, but this seems unlikely to me as any sort of motivation whatever. Aside from the fact of the political strength the Republicans gain simply by winning such a big fight, and the removal of any obstacles to the installation of any Supreme Court Justice they like -- which is more than sufficient motivation, in my book, let alone the lesser goodies of no more judge fights until the present political configuration changes -- while I don't find the resignation of Cheney utterly unlikely, I'm doubtful that there are actually all that many likely candidates Bush would nominate as Veep that the Democrats would wind up actually filibustering. Veep and judges are very different categories, with the former being purely political, and the latter not. I could be wrong, of course, and I don't hold the possibility out as an infinitesimal one, either. I'll just be a little surprised if it plays out that way. (Bush nominates... Oliver North as Veep; that would get a filibuster attempt.)

Now have fun proposing remotely plausible, yet horrifying, possible nominees. (Probably wouldn't be filibustered, and isn't the most horrifying, and isn't at all likely, but how about James Baker?)

[bs23]

Paul Horwitz

[nicethugbert]

Maybe, Ole Tricky Dick Jr. is letting Fristy be fall guy for when all this foolishness finally blows up.

[bob mcmanus]

"I have nothing to offer on this at present beyond purely subjective opinion"

I have whimsical nonsense to offer! On those moments when the Force leaves me and I give in to the Dark Side, I view the Senate as Washington's cooling tea in the saucer, the place where bad legislation and corrupt nominations go to die:either exploding in a Pythonesque gluttony of grandiose rhetoric or strangled by the entrails of parliamentary misdirection. Ahem.

So I am very attracted to the original original concept of the vice-Presidency. Presidential elections have not tickets or parties but are of free electors choosing individuals without any coercion or guidance but their best judgement. The Vice-President would be the 2nd highest vote-getter, preferably in vitriolic opposition to the President, presiding over the Senate in a position of great power on questions of rules, procedures, and especially Constitutionality. Though in the final analysis, only one vote in 101.

I acknowledge that even some of the Founding Fathers lost some enthusiasm for this system quite early, especially the one that got shot.

[liberal japonicus]

I acknowledge that even some of the Founding Fathers lost some enthusiasm for this system quite early, especially the one that got shot.

Wimps.

[bains]

If the filibuster wasn't delineated, nor even mentioned in the Constitution, what Constitutional 'crisis' is raised by its limitations? Remember, there are already several areas where legislation can not be impeded by filibuster. Seems to me, Horiwitz is purposely mis-framing a question in order to suggest a partisan answer.

[hilzoy]

bains: If Cheney rules that the filibuster is unconstitutional, then he ought to have some reason for thinking so. That the Constitution doesn't mention filibusters, and that it doesn't (as far as I can tell, and ianal) preclude it, just makes it all the more interesting to hear what on earth he might have to say.

[carsick]

bains,
The constitutional aspect is more about how rules are changed and the minority is unempowered. The intent of the constitution of our 'liberal' democracy is that the minority still has a protected voice and other rights. The rule changes implemented by a simple majority would allow a simple majority to change the infrastructure protecting the minority.

[Bernard Yomtov]

The Vice-President would be the 2nd highest vote-getter, preferably in vitriolic opposition to the President, presiding over the Senate in a position of great power on questions of rules, procedures, and especially Constitutionality. Though in the final analysis, only one vote in 101.

This isn't the worst idea in the world. The biggest problem I see is with the succession rule. You probably don't want a vitriolic opponent succeeding to the Presidency in case of death.

But you could solve that easily enough by making the second-highest vote-getter president of the Senate, but not Vice-President. This makes the loser a sort of Senator at-large, with a fair amount of power. Let's propose the amendment. I'm sure it will sail through.

[carsick]

Bernard,
In my town we used to have the second highest votegetter become the vice-mayor and frequently it was a member of the opposite party. Instant reason for comity and compromise. Unfortunately we also had a strong city manager form of government and a lot of people no longer supported it so in strengthening the mayor's role we also changed the appointment procedure in selecting the vice mayor.

[bob mcmanus]

Cheney

Article at Tapped about Cheney's role in the game this week. I am getting a little curious about Separation of Powers issues in the VP's two hats:What are the powers of the "President of the Senate"? I presume none Constitutionally except tie-breaking, but under Senate rules if he can declare a rule unconstitutional in contradiction to the Parliamentarian he woud have quite a bit.

No recourse or appeal, SCOTUS would be unlikely to take up such an case.

[Gary Farber]

The Parliamentarian has no legal power. The position is wholly the creation of the Senate, after all, and they can do whatever they want with it, including making it disappear if they want. (Please note that I'm not endorsing such a thing; I merely note that it is so.)

I may be wrong, but so far as I know, the President of the Senate has no more or less power than any of the Senators who sit in the chair of the President of the Senate, presiding over the Senate, and making rulings and keeping order on a continuous basis so long as the Senate is in session. No more or less power other than the tie-breaking role when it's the VP of the US sitting in the chair, that is.

I do agree, and have hit the point before, that if the Senate exercises the nuclear option, they are cutting their own throat, or at least a major artery, in surrendering a major amount of power to the Presidency; this is entirely beyond party, but about severely altering the balance of power between the three branches. This is why making such a change, even beyond the "breaking the rules to change the rules" question, which is so important in itself, is so profoundly and utterly anti-conservative.

[bob mcmanus]

Marshall

Mostly a short question on whether the "Cheney Maneuver" or the "Frist Subversion" (I am getting tired of Nuclear option" and ain't about to call it the "Constitutional Option") might end up in court. Marshall thinks not. I agree. Along with Marshall's reasons I question who has standing...if Democratic Senators, none of them have the nerve. And also because the composition of the Supreme Court would lead them to support Cheney. 200 years of tradition and precedent meant nothing to Scalia and Thomas in Bush v Gore, don't have any reason to believe their judicial philosophies have changed since.

On the other hand, if denying a floor vote is unconstitutional, the process of confirming Presidential nominees has been fatally flawed for 200 years, and perhaps all of the Democratic judicial confirmations, all sitting Democratic judges are poisoned fruit of an illegal process. And thereby their confirmations should be declared void, opening up many seats. This would fit the judicial temperaments of Scalia and Thomas.

(Yes, the above would also apply to Republican judges, but I am sure SCOTUS could come up with something.)

[hilzoy]

From the TAP piece Bob M. just linked to (by Bruce Ackerman, who is very smart):

"When the Founding Fathers first designated the vice president as president of the Senate, they did not think this would happen. They believed that the vice president would be a leading opponent of the sitting president, not his hatchet man. They expected the Senate president to defend its prerogatives in the system of checks and balances.

To see why, we must explore a bit of constitutional history. Under the original U.S. Constitution, members of the Electoral College didn’t cast one ballot for president and one for vice president. The Founders distrusted political parties and sought to minimize their influence. They refused to allow electors to designate a party ticket for a two-candidate slate, as they do today. While electors were each given two ballots, they were told to cast both ballots for the men they considered best qualified for the presidency. The candidate with the most ballots became president; the runner-up became vice president. This system virtually guaranteed that the vice president, serving as president of the Senate, would be the president’s principal political antagonist.

But party politics quickly proved too powerful for the Founders’ ingenious efforts. During the election of 1800, all the Republican electors voted for the party ticket of Thomas Jefferson and Aaron Burr, giving each of them 73 votes in the Electoral College. Although everyone knew that Burr was the party’s vice presidential choice, the tie threw the proceedings into the House of Representatives, and the Federalists almost succeeded in making Burr president. When Jefferson finally ascended to the presidency, the Republicans made sure that the problem wouldn’t happen again by enacting the Twelfth Amendment, which created the Electoral College voting system we have today.

But the Jeffersonians failed to consider how this constitutional change could transform the Senate presidency into an instrument of presidential power. It inadvertently created a constitutional time bomb that has been ticking for two centuries. It hasn’t gone off only because vice presidents have understood that the Senate was its own place and that their constitutional responsibility was to protect the integrity of its procedures.

Cheney, however, has been remarkably aggressive in his assertions of presidential power, and the present struggle over the filibuster provides him with yet another opportunity. It is up to 50 senators to determine whether they will assist him in his assault and bring the era of Senate independence to its close."

[Anarch]

On the other hand, if denying a floor vote is unconstitutional, the process of confirming Presidential nominees has been fatally flawed for 200 years...

I think that's a perfectly reasonable position to take, provided you're willing to use Article I Section 5 to expel the entire membership of Congress for knowingly violating the constitution. [To be fair, it should retroactively effect the past 200 years. Take that Martin van Buren!] Just to be on the safe side we should also recommend some kind of prison sentence; a class action lawsuit against Congress for wilfully violating their Oaths of office should do nicely.

Any Congressman who's saying that up-or-down votes are required by the Constitution but is unwilling to take that view to its logical conclusion? A fraud, and should be tread as such.

[CharleyCarp]

If the Constitution mandates a floor vote on judicial nominations,* why would it not also mandate a floor vote on bills?

Suppose Social Security phase-out can get 50 votes?

* Actually, this constitutional claim, frivolous on its face, is also irrelevant. Rule XXII, and the filibuster, do not preclude a vote. They just postpone the vote until debate in completed. I don't see anything in the Constitution -- not even in the penumbra -- that suggests that debate has to end at one point or another. The Constitution makes the duration of debate (and other internal rulemaking) a specific matter for rule-making by the body, and nothing at all in the text suggests that contrary to those rules one item or another must be brought to a vote before debate is completed.

I suppose, though, that our strict constructionist friends are going to find in the Constitution some sort of structure, like Roe's trimester scheme: 100 hours of debate for judicial nominations, 200 hours for executive nominations, unlimited debate for bills declaring National Turnip Week. Sort of like the 'one man one vote one time' embrace of democracy by certain fundamentalists, our 'conservatives' are arguing for a frivolous construction this time so that there will be stricter constructions in the future.

[carsick]

A quick reminder: If they succeed in killing the fillibuster the moderate republicans will no longer be of value to the party. "So long guys! Thanks for helping us put a happy face on our convention"
The moderates leave and a voice from the corner of the room says, "Put 'em on ice or kill 'em. I don't care. I just don't wanna see 'em in here ever again." The Wyoming accent was almost undetectable.

[Gary Farber]

I guess Maine gets given to Canada, then. (Or re-settled with clones of old-style [not contemporary!] New Hampshirians [okay, I have no idea what the right term is].)

[liberal japonicus]

New Hampshirites, I believe. Hampshirians gets a little Google love, but then again, doesn't almost anything?

[Anarch]

Mmmmmmm.... Google love...