Kent Pitman

Kent Pitman
New England, USA
Philosopher, Technologist, Writer
I've been using the net in various roles—technical, social, and political—for the last 30 years. I'm disappointed that most forums don't pay for good writing and I'm ever in search of forums that do. (I've not seen any Tippem money, that's for sure.) And I worry some that our posting here for free could one day put paid writers in Closed Salon out of work. See my personal home page for more about me.


DECEMBER 17, 2009 6:56AM

Busting up the Filibuster

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Before I began blogging, I published occasional essays at my home site on various political issues. In one of them, I defended the use of the Senate filibuster to block certain judicial appointments.

Some people see the filibuster as a mere nuisance with very little purpose, but I consider it an accidental but important Constitutional safeguard. My 2005 essay explained it this way:

If it takes a supermajority to change the constitution, it should also take a supermajority to change those who interpret the constitution. Otherwise, you create a loophole in which one can change the effect of the Constitution by installing judges who interpret existing wording different ways (whether by more strict conservative readings or more liberal readings).

I think it is a design error in the Constitution that court appointment, especially the Supreme Court, but probably at all levels, does not require a supermajority to assure that the public is comfortable with who is doing the interpreting of so basic a document as the Constitution.

If the filibuster is the only way to assure that we have a supermajority agreement, then it's clumsy but should be allowed to run. By allowing a non-supermajority to crush a supermajority check, as in the so-called nuclear option, an important constitutional check on the presidential appointment power is lost.

—Kent Pitman (Wednesday, March 16, 2005)
  On the Use of the Filibuster to Block Judicial Appointments

So I think the use of the filibuster to occasionally candidates for the Supreme Court is mostly a good thing.

And, by the way, I added the qualifier “mostly,” because it's the supermajority aspect of the filibuster I'm interested in. The part about making it hard to leave the Senate floor to go to get some food or sleep or to use the bathroom is just a little weird and I could do without that.

But, all of that being said, I would like to eliminate the Senate filibuster except for use in blocking Supreme Court appointments. (If there also exists a finite handful of other similar situations that I'm not aware of, we could rescue those as well, but I’d only want to do this in cases where having a supermajority could be argued to be critical to the integrity of the process.)

Ordinary legislation should require only a simple majority, not a supermajority. That wasn't what the framers intended. It's too high a bar. It makes the difficulty of passing of legislation tantamount to that of creating a Constitutional amendment. It keeps the party that won the election from doing the job it was elected to do.

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it's not elected to do anything. it's elected to rule. america has quadrennial battles in an on-going war of the roses, civil war with virtual bullets called, by no accident, "ballots."

imagine for a moment the usa was a democracy: no elections. instead, a team of would-be administrators would offer to the public a plan to manage health care, for example. their plan would be selected by referendum, in competition with others. they would hold office to 'do' something, not ' be' something.

when the duke of york beat the duke of lancaster, because he got more arrows in the air and thereby became king, no one imagined he was there to satisfy his soldiers. america is at that level of evolution, though ballots have replaced arrows.
Al, I bet if you wrote that up as a post, you'd get some interesting discussion going... but I don't quite see the connection to my remarks here about the filibuster.
I don't think a filibuster should be the bar that all legislation should be measured by Kent. I sometimes fail to understand the how of this use to pass legislation. It is like the current debacle that is called Lieberman. Here is a guy with the keys to the kingdom and plays the tune for everybody else to follow.
One man has the power of all. 'tis like he is an unelected king.
Mission, the answer is that people used to show restraint and seek to be honorable. They did things because they were supposed to, not just because they could.
The super majority in the Senate has to go in it's present form. It makes governing nearly impossible. I'm not sure a complete elimination is in order, but scaling it back certainly is.

In no way should 41 have more power than 59. It's Un-American. I think a simple majority may be a bit too lax and could also suffer from abuse, but I recently saw a statistic that the filibuster has been used 139 times this year compared to only 39 last year.

The filibuster now seems to not only water down legislation, but also enhances the power of lobbyists since they need less Senators do hold up legislation.

I also think watering down the super majority would allow more wiggle room for certain politicians by allowing them to vote against certain bills without it harming them in their caucus or with their constituency back home.
I agree it has its place in this, and possibly in other appointments. What do you think about it remaining in place for cabinet appointments, or all presidential appointments?
Michael, I don't think the simple majority vote is as weak as you're thinking. I made notes and will do a separate post on this sometime soon. Thanks for the “suggestion.” :)
I completely agree, Kent. I don't think the Founders intended things to be this way. Well said.
Saturn, I can see the concern about cabinet posts. (Are they in the Constitution? I can't recall, and would have to go look, but don't have time just now.) I think they have to still be confirmed but if you make the rule be a supermajority, that's a big problem because then the minority has the ability to undercut the majority's preferred choices to get things done (they are part of the Executive and entitled to be helpful to that, just as it was finally decided the VP had to be in the same party as the President, not fighting him all the time). A supermajority confirmation of cabinet posts would be the power needed to effectively sabotage a duly-elected regime by a party committed to simply undermine the sitting Presidency, something I would have thought impossible until I saw it this time around with the Republicans. It seems wrong to enable such behavior So whatever rule I'm suggesting doesn't mean to imply that they ought to be covered. Maybe I do mean to limit myself to just the Court.

By the way, I've suggested in another post that the President should not have the power to pick the Supreme Court justices anyway. And eliminating that power would make this a clean sweep eliminating the filibuster for everything.

What I think makes the Supreme Court special is that it is another branch. Very special controls need to be in place in order to safeguard who can get on that because it's so powerful and so hard to undo. It is really unlike the Cabinet, for example. In fact, it exists as a way of putting a check on the Cabinet.

You buying any of that?
John, thanks for stopping in with the supportive words.
I'll buy some of it. I read somewhere that half of the filibusters against presidential appointments have been against cabinet members, but I can't (due to time) check into that much further. There's an argument to be made for non-elected officials always needing a supermajority from an elected body, but -- that argument leaves me uncomfortable because it discounts the value of the president's election. I'm still very much in favor of Supreme Court justices being president appointees.
Saturn, I might bargain down to an impeachment capability for cabinet positions so that the Executive couldn't just insist they stay in place if they were doing harm. Would that work? It would put the burden on someone wanting to remove such a person to show actual cause or at least tangible concern.
Oh, and I'm extremely curious why you think Supreme Court nominations should come from the President, but if you wouldn't mind making any such comments on the post I alluded to, I'd appreciate that so I and others could find your comments later. You didn't say anything over there when the post first came up.
But they have impeachment on the menu already, right? I don't think anyone's tried to use it since, what, Andrew Johnson's term, but the Senate can impeach a member of the cabinet. They just never do. And impeachment is essentially ex post facto, something that's done after actions reach a certain terrible pitch. Filibustering a nominee is supposed to prevent bad things from happening. I don't know if bargaining down to one from the other has anything like the same effect, if the effect is supposed to be maintaining a good cabinet. Then again, I think this is getting off of your intended topic quite a bit, so I can stop.
Amen to that. And it's one thing if the senators actually had to do the whole Jimmy Stewart routine and deliver a filibuster, but the filibuster-by-intent is ridiculous.
The filibuster was designed to slow down the process of legislation so that the majority couldn't push through legislation at the drop of the hat. IMHO, the problem with the filibuster is that it's now used without having to maintain a physical presence (i.e. the old-style filibuster of continued discussion by the minority party until they either give up. or lose having the members needed). This country has never liked the idea of majority rule without input from the minority. The filibuster is a reflection of that, and IMHO, a good idea. As a conservative Republican, I thought the filibuster was ok when the dems used it. I admit, I don't like the procedural filibuster that doesn't require physical presence.
Saturn, impeach may be the wrong word only because it has a trial and requires guilt. What you're worried about, and reasonably so, has a lower standard but should still not be a null standard. I think something like the “no confidence” standard notion might be right. A way of not nitpicking behavior but rather of effect.

Norwonk, I really gotta see that movie sometime.

perdidochas (and Norwonk, too): The physical embarrassment and tedium of doing it, and the shame of having it be the only thing in your quiver, is important, yes. Among other things, there are many responsibilities of a Senator so if he always has to be up gabbing, he won't be doing other things. And that, in turn, will tend to limit him by forcing at least a little thought about balancing priorities. The procedural option doesn't have that cost so, like email spam, is free to just do any time just because you can. Even the price of a postage stamp stops people from spamming not because one stamp is too expensive but because the cost adds up. The insurance companies use co-pays the same. And so it should be for the filibuster—at minimum some cost. But I'd just as soon get rid of it.
The filibuster has gotten out of control. It used to be used infrequently. Now it's become routine. A change is needed. Thanks, Kent.