Matt Yglesias

Hertzberg on the Constitutionality of the Filibuster

Avi Zenilman points to an August 1994 New Yorker article by Hendrick Hertzberg making the constitutional case against the filibuster:

It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it, any more than it occurred to them to specify that senators should not dunk each other’s powdered wigs in the inkwells. For, as the Supreme Court noted in 1892, “the general rule of all parliamentary bodies” that “when a majority is present, the act of a majority of the quorum is the act of the body…has been the rule for all time.”…. Unfortunately, the Court, which is extremely shy of challenging the internal workings of Congress, is not about to outlaw filibusters.

I would just want to be clear about the scope of the “unfortunately.” I do think the existence of the filibuster is unfortunate, and therefore it’s unfortunate that it doesn’t get somehow stricken from afar. But I think the Supreme Court’s reluctance to poke into the internal deliberations of Congress is pretty well-founded; this strikes me as a good rule that happens to have a bad result in this case. Ultimately, the people responsible for making congress work are the members of congress. The unfortunate fact of the matter is that senators of both parties overwhelmingly favor nutty institutions like the filibuster and the even-more-ridiculous “holds.” Both practices advance the interests of individual senators, and most senators care more about their personal power and prerogatives than they do about the welfare of the country or the world.

Jeffrey Toobin Offers a Grownup Perspective on Constitutional Law

The US Supreme Court (cc photo by laura padgett)

I agree with Scott Lemieux that it’s very nice to see Jeffrey Toobin able to offer an adult view of how constitutional law works in a mainstream U.S. publication:

In her opening statement before the Senate Judiciary Committee last week, Sonia Sotomayor said that she wanted to clear up some questions about her views. “In the past month, many senators have asked me about my judicial philosophy,” she said. “Simple: fidelity to the law. The task of a judge is not to make law—it is to apply the law.” Coming from a jurist of such distinction, this was a disappointing answer. Like much of her testimony, it suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions.

In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.

I don’t think I would say that “there is no law” in those kind of situations. Rather, I think the thing to say is that people’s opinions about what the law is are going to be irreducibly bound up with their opinions about larger social, moral, and political issues. People reach different conclusions, in other words, for reasons other than technical incompetence or corruption. Unless you think that ethical issues in general don’t have correct answers, this doesn’t mean that hard legal questions have no correct answers. It just means that on hard legal issues, like on hard ethical issues, we can’t expect convergence on a single result and it would be informative to have people say something broader about the kind of values they bring to the table.

That said, an aspiring justice needs to play the game according to the rules as written. Unfortunately, the way our current set of rules works, the hearing process tends to be a bit of a tawdry farce.

The Hard Cases Are Hard

Ramesh Ponnuru takes issue with what I think is a fairly banal David Brooks point about how judges’ background and experience will probably alter their thinking about cases:

Without wishing to take issue with the abstract point Kahan is making—surely it’s true that different judges come to different conclusions because they assign different weights to the various facts involved—couldn’t a third judge “perceive” that the Constitution, properly interpreted, doesn’t actually empower him to balance, or say anything at all about, the schools’ concerns about security and the girl’s psychic needs? And wouldn’t Brooks’s observations about judicial psychology apply a lot less to a justice with that mental “model”?

I appreciate that the rhetoric of embattled conservative judges waging a lonely battle on behalf of “the law” against a cohort of subjectivists is politically useful, but I wonder if folks on the right really believe this stuff.

The whole essence of controversial appellate decisions is that the constitutional or statutory provisions at issue aren’t clear. The super-clear issues don’t get litigated at all. Congress isn’t going to pass a bill saying “Christianity is now the established religion of the United States.” But questions arise that people disagree about because legal standards are full of abstract terms. There are protections from “unreasonable” searches. Thanks to the existence of precedent, judges don’t start de novo asking individually weather or not any given search is reasonable. But new, difficult cases arise when circumstances arise that aren’t covered by the precedents in an unambiguous way. What “the Constitution” says is going to turn on how a judge balances the different considerations in play.

For Judicial Term Limits

Lifetime tenure for federal judges is a very dumb idea. The fact that anyone supports it is, in my view, just a pure example of status quo bias. If we lived in a country where the nine justices of the Supreme Court were serving staggered eighteen year terms (i.e., one new justice every two years) absolutely nobody would be saying “if only justices stayed on the bench until death!” The point of life tenure is to give the judges independence from short-term political considerations. But a long fixed term, combined with a reasonable pension, completely meets that goal and avoids the high level of arbitrariness associated with the current system along with the macabre spectacle of wondering when people will die and the goofy incentives to appoint justices who are as young as possible.

But if you’re not convinced by me, listen to Sandy Levinson and Scott Lemieux.

Against Appointed Senators

Washington Post editorial page wisely notes that the past few months’ worth of Senate appointment chaos should serve as a reminder that appointed senators are a bad idea. We ought to do special elections.

This also reminds me of the reverse problem, namely that in the event of (God forbid) a mass-casualty terrorist attack on the U.S. Capitol, the requirement that members of the House of Representatives be replaced via special election could produce a disaster. In other words, if someone managed to somehow kill almost the entire congress during a State of the Union address we wouldn’t be able to stand-up a new House to authorize the needed response measures. The only reasonable course of action would be some kind of extra-constitutional rule by presidential decree and it might be difficult or impossible to actually return to the rule of law.

Ideally, then, the ordinary rule would be to replace Senators or members of the House via special election but to have some kind of special proviso for filling seats with appointees in case of a mass-casualty event.

Cheney’s Unlimited Power Doctrine

Matt Corley observes Dick Cheney outlining his view of presidential power:

On Fox News Sunday today, host Chris Wallace asked Vice President Cheney, “if the President, during war, decides to do something to protect the country, is it legal?” “I think as a general proposition, I’d say yes,” replied Cheney.

Obviously, everyone would like the president to take action to protect the country during war. Indeed, protecting the country is good even during time of peace. But Cheney’s view of this matter is inimical to the idea of liberal democracy. Suppose President Obama feels that John Boehner’s neo-Hooverite opposition to economic stimulus is endangering the economy and playing into al-Qaeda’s hands, so he decides to lock him up in Gitmo? That would be extreme, of course. But every President feels, completely sincerely, that his policies are necessary for the security of the nation. And thus, every President feels that his opponents are endangering the country. And in the past executive branch officials have repeatedly been tempted to abuse their authority in order to persecute political enemies. Woodrow Wilson did it, Richard Nixon did it, and to some extent so did all the presidents between them.

And it’s important to recall that Cheney doesn’t think that there needs to be a declared war or anything to bring these wartime powers online. The mere risk of terrorist attack — something that it’s hard to image ever entirely going away — is sufficient.

Underlying all of this is an odd conservative lack of faith in democracy. Cheney’s implicit theory is that the democracies prevailed in the Cold War — surely a time of greater external threat — despite our liberal political systems. In fact, the openness of liberal democracy was a major strength. Robust political competition, a free press, transparency in government, etc. helped ensure that policy errors would actually be corrected and that corrupt practices would be curbed. Cheney-style autocracy works fine as long as nobody is ever incompetent or corrupt, but that’s never. And it certainly doesn’t describe the Bush-Cheney administration.

Gay Marriage Backlash

Megan McArdle reflects on the success of Proposition 8 in California and offers a familiar backlash narrative:

I do think, though, that the success of anti-gay-marriage initiatives reinforces something I strongly believe: the issue was pressed too quickly, and in the wrong venue. Using the courts to establish a right to gay marriage made opponents feel threatened, and railroaded. If socially conservative voters hadn’t felt they needed to protect themselves from activist judges, we wouldn’t be seeing these provisions written into state constitutions. Few of them would probably have bothered to vote out legislators who voted for gay marriage five years from now. But with it on the ballot, in front of them, and worries that judges would make the decision unless they did, they shot it down even in California.

In general, courts are the wrong place to press these sorts of claims. The courts were appropriate for civil rights because blacks were literally denied the right to participate in the legislative democratic process. And on a practical level, they worked because a majority of people in the country were more than happy to force civil rights on an unhappy white southern minority. Unfortunately, too many groups have decided that the success of civil rights can be widely applied to circumvent the electorate on issues where there is no public consensus. Now widespread gay marriage seems quite a bit less likely for the near term than it would have been had we attacked the issue legislatively.

The narrative is familiar because it’s often offered as an account of the politics of abortion. But efforts to study the issue empirically, as opposed to just opine from the armchair, never actually adduce evidence of this kind of effect.

That aside, granting the backlash hypothetically, I never quite understand what the upshot of this sort of analysis is. Say you’re living your life with your partner and you want to get married. But then the local legal authorities tell you that you can’t get married. That seems like unfair discrimination to you, so you inquire with an attorney. The attorney says, yes, your state has never allowed a man to be legally wed to another man, but he agrees with you that it’s unfair. And not just unfair, illegal, a violation of your state constitution’s guarantees of equal rights. So you sue! Then the case comes before a judge and the judge thinks, yeah, the local authorities’ action is a violation of the state constitution’s guarantee of equal rights. Is the judge supposed to rule against you even though he thinks your case has merits, offering as his reasoning “it would be counterproductive to the long-term political strategy of the gay rights movement for me to offer the ruling I believe to be correct”? That doesn’t sound right.

And is Gay Rights Central Command suppose to somehow stop you from suing? How would they do that?

The fact is that as best I can tell most gay rights organizations agreed with Megan about this. As of a few years ago, their big idea was to push for what they saw as practical legislative goals — hate crimes laws and an Employment Non-Discrimination Act — to help slowly but surely continue to build legislative support for full equality before the law. But they had no ability to prevent various individuals in Hawaii, Massachusetts, California, and elsewhere from pursuing their legal rights as they saw fit.

Sarah Palin, Constitutional Scholar

In case you haven’t seen this yet, it’s yet another example of a woman saying stuff that would be considered disqualifying in a state senate race:

“If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations,” Palin told host Chris Plante, “then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

Needless to say, there is no first amendment right to be immune from criticism. Not to be immune from criticism from Sara Palin, not to be immune from criticism from bloggers, and not to be immune from criticism from the mainstream media. There’s nothing remotely like that in the first amendment, and rightly so.

Against The Vice Presidency

Gene Healy, surveying the wreckage of the Cheney years and the odd answers given at the VP debate to questions about the scope of the Veep’s powers, says: “Here’s hoping that Vice President Biden or Vice President Palin will spend less time making policy and more time attending funerals.”

Alternatively, let me once again bring up the simpler solution to the question of the VP’s weird, ambiguous status — abolish the office. The scheme set up in the constitution doesn’t make sense. The office was originally designed as a prize for the second-place finisher in what was envisioned as a multi-candidate presidential field without running mates. Once the two-party system emerged, the procedure immediately created serious problems that had to be rectified by Amendment XII to the Constitution, but though that amendment prevented potential disasters it didn’t rectify the fact that the basic conception of the office is bizarre given our actual political institutions. It would be simple for the line of succession in the event of presidential death to pass directly from the President to the various cabinet officers in some order. Yes, it would take a constitutional amendment to make the change. But unlike with other process reforms that I think the country could use, there’s no entrenched interest group with a stake in keeping the vice presidency alive — it’s just sloth. But if everyone agrees that nobody understands what the VP is supposed to do the solution is simple — get rid of the VP.

It’s the Institutions, Stupid

Yesterday’s David Brooks column contained a putative contrast between Barack Obama as a champion of “policy change” that’s responsible but dull, and John McCain who “is the champion of systemic change — after two decades of bickering and self-dealing, its time to shake up the whole system in order to get things done.” What does that mean? Brooks doesn’t know, he just says that “McCain promise of change is comprehensive and vehement, though it’s hard to know how it would actually work in office.” Brendan Nyhan is justifiably confused by this and countersthat “in reality, the way ‘policy change’ and ’systemic change’ typically happen is that the party in control of the presidency changes or the balance of power shifts in Congress.”

That’s true. I would add, though, that I think people should point out that it would be possible, in theory, to actually change the institutions of American politics. In the United States we do this very strange thing where almost every successful politician of either party and almost every pundit has a habit of complaining about gridlock, observing that Washington is broken, and other sundry clichés. And they’re right — we have a set of political institutions that were designed a very long time ago by men who, while intelligent, didn’t share modern values, didn’t have the benefit of observing different democratic political systems in operation, and had no sense of the challenges of modern politics. But at the same time as all this complaining about our broken system, the constitutional order that constitutes the broken system is revered. If, as a country, we really wanted to “change Washington” we could do what the Founders did, decide to scrap the whole thing, elect delegates to a big convention, and write a new one.

Now that’s not going to happen. But smaller institutional changes could be undertaken. Back during the primaries, a lot of liberals criticized Barack Obama for focusing too much on process and not enough on substance. If anything, I thought the problem was just that he didn’t go far enough. Periods of substantive change in American politics have often been associated with real procedural changes in the operations of government. Not “bringing people together” or “changing the culture of blah blah” but, say, actual shifts to curb the use of the filibuster and the power of committee chairs. Those were good ideas when they were done in the 1960s and 1970s, and it would make sense to keep moving in that direction. The prospects for major health care reform or climate change legislation would look very different if it took 50 Senators (plus the Vice President) to pass a bill rather than 60. This stuff is hugely important, and yet nobody talks about it.