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Wednesday, May 25, 2005

Nuclear Politics

The great irony of the discussion over the constitutionality of the Senate procedures for closing debate and for amending rules has been the liberals' insistence that a practice must be constitutional since it is traditional. This will surely ease their objections to future conservative judicial nominees, whose "extreme" behavior is usually showcased by their fidelity to traditions of legality and illegality.

I think there are good arguments to be made for why a majority vote of the Senate should not be the process by which we find a rule (or procedure for setting rules) constitutional or unconstitutional. Personally, I think the weight of the reasoning cuts the other way, since there has to be some method to judge the constitutionality of Senate procedures. The Courts have said they will not get involved in any but grotesque procedural situations (See U.S. v. Nixon), but they have also not precluded others from making constitutional decisions. In fact, the logic of Marbury, by which the Court finds its need to assess constitutionality as incidental to live cases, would support (I believe) a role for the Senate itself in judging the constitutionality of its own procedures. Roberts Rules of Order are not the Supreme Law of the Land; only the Constitution demands such perfect adherence.

But beyond that difficult argument, the most fascinating liberal claim has been that somehow the Republicans were out of line for trying to sabotage an institution which by different accounts has existed since Wilson administration, the Civil War, the Founding of the Republic, and the Seven Days of Creation (to be referenced for hyperbole's sake on the condition that they are never mentioned in a classroom). How Delightful! Precilla Owen is opposed because she is so extreme that she thinks the constitutional tradition of not recognizing unlimited personal rights under the Fourteenth Amendment has some salience. But the same attacked-reasoning used by conservatives from Justice Scalia to Embattled Federalist Law Students to interpret the constitution is inscribed on the Filibuster Golem to preserve its life. What a wonderful trick!

The battle between Justice Scalia and Justice Kennedy in Lawrence v. Texas is a rematch of the debate in Michael H. v. Gerald D., which is itself just another chapter in the long line of cases dating back to the Slaughterhouse Cases. If written constitutions are to retain the power we want them to retain, they must be static instruments to bind us from moving too far with majoritarian processes which can be overly susceptible to dynamic and transient impulses. To know the limit of this bind, then, we turn to tradition, since the bind itself is static and not dynamic (that being its only advantage over the otherwise highly legitimate output of democratic majoritarian politics). To understand the limits on the powers of our elected officials, then, we turn in part to history and tradition to see what has been history's understanding of the limits to our legislative powers.

The liberals misunderstand this principle on two fronts now. First, they seek to apply it to Senate rules, whereas it only makes sense in the context of written constitutions. We may have many tax traditions also, but that doesn't mean that attempts to change our tax brackets should be treated with any less deference than the initial creation of tax rates. More critically, though, their conception of rights, and liberties, and freedoms is too dynamic. They see the Constitution as the source of power for mini-legislatures, staffed only with the elite. Its traditions are irrelevant, since it is merely a medium for power for their designated leadership. (This is the Mike "Czar of the Telestrator" Fratello School of Constitutional Jurisprudence. If you have a bad or outmatched team, you try and shorten the game, expecting a greater likelihood of victory in a 30 possession basketball game than in one with 75 possessions. Thus, the liberals---having been convinced that they cannot win in most states or most Congressional districts or most presidential elections---seek to shorten the game by deciding critical matters of society, culture, and law in a nine-person forum). Therefore, they not only don't value traditional interpretations, they need to affirmatively reject them so as to capture power.

But, at least their endorsement of tradition in the battle to preserve a Senate Procedural maneuver must clear the way for future Supreme Court nominees who similarly value looking to our legal traditions to guide our legal present. It must, right?


Blogger Anderson said...

Where the Constitution and the case law interpreting it are silent, such as on procedures for Senate (non)votes on judicial nominees, tradition carries much weight.

The decisions which annoy Lord Coke are those which, wrongly he thinks, rely on the Constitution & case law to reach certain conclusions on contraceptives, abortions, etc.

So I think his argument would make a good SNL skit, but not much more.

10:45 AM  
Blogger Helvidius said...

Anderson, What does that even mean? The point is that it is wrong to think that there should be a resort to tradition in Senate rules for the same reason you should be an originalist in Constitutional interpretation. There needs to be an independent argument for resorting to tradition in senate rules, not just "you conservatives do it with the Constitution."

I don't understand what Lord Coke's distaste with the SDP cases has to do with anything, and how they rely on Constitution and case law in any event.

The battle between Kennedy and Scalia in Lawrence is not about tradition for tradition's sake (as the argument is made against the nuclear option), but tradition because that is what the Constitution binds us to. The Constitution is a static document, the senate rules are not. You need an independent reason why we should do things the way we always have in the senate.

11:23 AM  
Blogger Anderson said...

Tradition means something in the Senate because the senators choose to have it mean something.

But to critique Lord Coke more closely, he says this:

the most fascinating liberal claim has been that somehow the Republicans were out of line for trying to sabotage an institution which by different accounts has existed since Wilson administration, the Civil War, the Founding of the Republic, and the Seven Days of Creation (to be referenced for hyperbole's sake on the condition that they are never mentioned in a classroom).

It's convenient, at best, to neglect that this appeal to tradition was a response to Republican claims that the minority's obstruction of judicial nominees (MOJN) was itself "unprecedented" and some sort of power grab. Which it just wasn't.

The "tradition" argument has nothing to do with *changing* the Senate rules. Change them all you want. But the rules themselves could not be changed by a simple majority vote, which is why all the nonsense about the *unconstitutionality* of MOJN had to be fabricated, so that the "nuclear option" could prevail on 51 votes. THAT was the argument against the "nuclear option."

Oh, btw, *six* days of Creation.

1:17 PM  
Blogger Lord Coke said...

Of course, Andersen, these Senators did not CHOOSE to have the
tradition mean something, since more than half of them shown an
interest in trying to change the way the Senate operated. What was
unconstitutional was forcing future Senates to abide by the
procedures of the past, when the Constitution is not silent on the
issue, since it contemplates rule by the majority. Disagree? The
Federalist Papers (surely a fair source of tradition) note that:

"In the extended republic of the United States, and among the great
variety of interests, parties, and sects which it embraces, a
coalition of a majority of the whole society could seldom take
place on any other principles than those of justice and the general

This passage--beyond rebutting the general liberal claim that the
judges selected by the president (elected by a majority of states,
electors, and people) and supported by a majority of the Senate
could ever be out of the mainstream--showcases the traditional
(ergo constitutional, by the liberal logic) belief that the Senate
should operate by majority rule. If the Senate can pass judgment
on the Constitutionality of its own procedures (which I argue that
it should be able to, but I understand contrary views), and if the
liberals think that traditional conceptions of the constitution
carry interpretive force, then surely the assumption that the
institution would operate by majority rule carries some weight.

6:47 PM  

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