On filibustering

As a historian I might be thought to be writing on unauthorized 19th century military expeditions of rowdy and bombastic cowboys and freebooters, but I'm actually writing on boring Senate procedural filibustering. The Senate Filibuster used to be a real show. A Senator would have to talk--literally--without pause to hold up Senate business, thus waiting for the other Senators to retire so that a quorum to continue was lost or enouch of the opposition left the chamber to tip the scales of the vote to be taken on a dreaded bill. Of course the last famous filibusters of this style well deployed against Civil Rights reforms in the 1960s and the procedural quirk of the Senate was subsequently reformed to save Senators the trouble of having to speak for hours on end. The result is the current system whereby an indivdual Senator announces their intention to filibuster whereby the Senate simply stalls until 60 of his fellows vote to proceed, getting all the benefits of an old style filibuster without any of the accompanying pain and theatrics.

Of course, a party in minority, particularly the current uncharacteristically small minority Republicans in the Senate have (41) will wish to use this, its only real check on the majority, as often as they feel they must when it seems unlikely that enough of their opponents will defect. As the Senate was designed without the idea that it would be the realm of two institutionalized and entrenched parties that would also exist in the House of Representatives (not to mention without the notion that it would directly represent the people), the filibuster rule of the Senate has been a useful and appropriate innovation to retain the spirit of the original expectation that the Senate would be a check on the lower house and more slow and deliberative in the legislative process. Unfortunately, frustrated Democrats in the blogosphere are displeased with the "slow" pace of "change" currently coming out of the U.S. Congress and they have set their sights on the filibuster as the prime culprit. Of course, when Democrats were in the minority, the filibuster was a tool they employed often enough, but now, some claim, Republicans have abused the process.

Another quirk in this situation is that the Senate, under normal circumstances, cannot change its rules except through the vote of a super majority of two thirds--except at the beginning of a new session where the body only needs a simple majority or a tie with Biden's tie-break vote to change the rules. As long as they take on no other business before the rule changes, a simple majority can change all the rules if they desire it. The idea is that if they proceed to other business then the "new" Senate implicitly accepts all of the "old" Senate's rules and therefore must accept the super majority rule for amending. One thing I'm not clear on about how this works is how one accounts for the senate ever being old or new given that two-thirds of that body is always in office, unlike the House which actually can be completely new every two years.

Part of this is sour grapes. When out of power, both parties use the filibuster to prevent things they don't like and cannot possibly defeat in any other way. And both parties, when in power, bemoan the use of the filibuster by the other side. So some of this is just silly unreflective partisan nonsense. But some of this is a realization in the part of radicals that the filibuster is, inherently, a conservative tool, preventing all change of the status quo no matter if defined as good or bad. As such, it can and always will be deployed against reform in any direction. Liberals would deploy the filibuster against deregulation, legislative repeals, and all manner of "reform" they clearly do not like. Conservatives have acted likewise. But when you have a 57 Senator majority, plus two caucusing independents, it is understandable that true believers get frustrated that the minority can so easily gum up the works. But given the scope of any "reform" and the ramifications it might have, it is still somewhat mind-boggling that on the verge of massive electoral reverses the Democrats and their most radical supporters would urge the destruction of what may one day soon be their only means of halting "reforms" they do not support.

Range of the moment thinking is often characterized by the complete absence of long-term thinking. It is all around us, but no more pathetically than in a national political leadership that runs trillion dollar annual deficits without blushing. By advocating a rule change by which to silence their opponents, radicals on the left may actually be enabling their opponents to easily ignore their shrieks of protest in the future when they aren't in the majority. So while I oppose such a rule change as essentially dangerous to minority rights, I will not feel sorry for lefties when this one--if they manage to pass it--comes back to bite them in the ass.

In Defense of the Atom Bomb

If you have not already seen the trailers for “Countdown to Zero,” get ready, because after being dormant for over twenty years, the no nukes/nuclear freeze nuts are back with a vengeance. The same charlatans who brought us “An Inconvenient Truth” to convince us that mega-Hurricanes were about to swamp the United States in a mega-hot post-Katrina world. Remember that? Ok, even scientists can make mistakes, and that is the ultimate point of this new “documentary,” they made a huge one when they weaponized the power of nuclear fission, and then later nuclear fusion. Now we are to be dictated to by the likes of Jimmy Carter and Pervez Musharraf about bringing the total global number of nuclear weapons to zero. It is one of the most breathtaking examples of foolishness presented seriously I have seen in some time.

Nuclear weapons are alarming and breath-taking in their destructive capacity. It is possible to envision building enough of them to, if used, wipe out most of human civilization and make subsequent life on earth extremely difficult for the survivors. For Hollywood directors this idea presents interesting avenues for action/science fiction movies. For simpletons it is an alarming and realistic prospect. But nuclear weapons are the single greatest factor in preventing the second sequel to World War I and all other major wars in the period after their use at the end of World War II. War on a major scale between nuclear powers is inconceivable to all people involved, because winning seems completely impossible. Or if it is technically possible, it presents the most Pyrrhic of Pyrrhic victories. And so, after the bloodiest opening of any century in human history, the second half of the twentieth century was one dominated by wars in the third world that, while deadly and destructive, did not threaten to bring war between countries most capable of destroying the progress of civilized man.

That genie is irreversibly out of the bottle, for better or worse. It is not possible to dial back the clock. Nuclear power offers great enormous potential to generate cheap efficient power with rather minimal risks, and its development brings along the possibility of weaponization. That’s simply a fact of reality. Nuclear weapons are alarming in the hands of despots and psychotic criminal terrorists around the world, and that specific issue is worthy of combat, but disarming the United States of its defensive nuclear arsenal is criminal at best. No hostile forces and regimes around the world are ever going to listen to Jimmy Carter’s pathetic appeals to give up nuclear weapons. Just as criminals do not follow the law in acquiring illegal weapons, the world’s worst people will not break their designs for one minute even if the United States were to toss all of its nuclear weapons in the ocean tomorrow. We’ll be infinitely less safe, our allies will be infinitely less safe, and for what? The notion that it is possible or desirable to re-enter the pre-1945 world is horrifically nonsensical. The best that can be said for those who would seriously advocate that nuclear weapons be destroyed is that they are woefully disconnected from the reality of world affairs and human nature, not to mention all of human history. I will leave the worst that can be said for them to private utterance.

On a separate note I have just learned that cap and trade is dead for this legislative session: Huzzah!

Check out a new post on Thomas Jefferson on the early republic blog and get involved in the discussion!

Why I’ll Never Be Confirmed to the Supreme Court

John Paul Stevens is out, Elena Kagan is about to be in. The Supreme Court of the United States, the pinnacle of the third branch of the government, is about to welcome aboard its 112th member and President Obama’s second addition to the court after Sonia Sotomayor. Elena Kagan kicked off her Senate confirmation hearings by pledging “modesty” in her future career as a member of our country’s most august court. Therein lies the problem in my theoretical confirmation to the Supreme Court (based on the extremely dubious assumption that I could be or would be nominated by some future President). A Supreme Court Justice should be many things, but modest is not one of them.

Modesty, as Justice-to-be Kagan employs the word, means deference to the legislative and executive branches in their making of law. In Kagan’s world, that simply means bending the Constitution over backwards to allow unconstitutional laws to skate by the fundamental supreme law of the land. To her would-be opponents in the Senate, Mitch McConnell’s hapless band of Republicans, modesty is a good thing since it means no “legislating from the bench” and therefore none of those annoying judicial decisions against gay marriage bans or abortion restrictions. In either guise, “modesty” from a Supreme Court Justice is improper. Instead of being that which is always and ought to be said in these confirmation hearing, modesty should be relegated to the “list” of words that gets one “Borked” right out of the room. [By the way, just so there is no confusion, Robert Bork was a terrible nominee who was rightly rejected—or “Borked.”]

What would Supreme Court Nominee Alexander Marriott say in his confirmation hearings about his judicial outlook and philosophy? I would approach such a job offer in the following manner, from most specific to most general: 1) the role precedent or stare decisis should play for a Supreme Court Justice, 2) the role of Supreme Court Justice qua the rest of the government in our republican system, 3) the Proper method of interpreting the constitution, and 4) the proper role of the Federal Government in relation to individuals and the States:


The role precedent or stare decisis should play for a Supreme Court Justice
Judges of inferior courts should be extremely hesitant about ruling against the decisions of higher courts, particularly the Supreme Court of the United States. It is in this sense that the principle of stare decisis makes the most sense for a rational judiciary. There are two primary reasons for this: 1) in inferior courts there is still a higher court to appeal any decision to and 2) stability in the law is important to maintaining respect for the law and stability in society. BUT, for a Supreme Court Justice, it is doubly important to be independent from the tyranny of erroneous reasoning of prior Supreme Court decisions. Prior Supreme Court precedents are not to be taken lightly, but those that do not conform to higher principles discussed below are not entitled to unlimited respect as final or definitive.


The role of Supreme Court Justice qua the rest of the government in our republican system
A Supreme Court Justice is but one member of the highest court in the United States and thus has a part in crafting the final word on all constitutional legal matters. This includes the ability to check the legislative and executive branches by voiding federal laws which violate the Constitution. The Chief Justice also participates in the checking of the executive branch by presiding over impeachment trials of President by the Senate. A Justice of the Supreme Court ought not to assume an unseemly deference to congressmen or Presidents because the former were elected by the people. Every Supreme Court Justice is appointed by the one officer of the government elected by all of the people and confirmed by the people’s representatives in the U.S. Senate. This indirect method of gaining their positions is appropriate and legally prescribed by the very Constitution they swear oaths to uphold. They perform an equally vital and indispensable function in the government with the other two branches and should not grovel. An independent and strong judiciary is essential to the freedom and well-being of the republic. The judiciary can only be as independent and strong as each of its individual members. Any actual abuses, true deviations from the application of the laws, or gross violations of laws or incompetence, all of these are just causes for removal and the constitution provides the remedy to the people’s most immediate and direct part of the government, Congress.


The Proper method of interpreting the constitution
The first standard of judging of the Constitution is the Constitution itself. Treaties are supreme to all other law as well, but as it would be an absurd conceit to place Treaties on par, let alone above, the Constitution, they must have a subordinate role to the Constitution. Following Madison’s advice, the next most “authentic” set of sources for expounding on and interpreting the charter are the records of the ratifying conventions that made the Constitution an operative and real government, and not just an idea written on paper. Next are the contemporaneous debates and statements on the Constitution by its supports and detractors during the ratification period. Next are the precedents established during the first several years of the government’s operations. Finally there is the body of Supreme Court constitutional case law. The only other sources of law that can be properly admitted into discussions of fundamental American law are those that existed prior to the Constitution. Thus the Declaration of Independence is a relevant source of American jurisprudence, while the common law of Great Britain is not (as Marshall decided during the Burr treason trial). International law has bearing through treaties and through informal usage and acceptance, but it cannot be superior to the Constitution in an American court of law—any American court of law.


The proper role of the Federal Government in relation to individuals and the States
The Federal Government was formed for specific reasons and was thus granted specific powers. The Constitution neither creates an unlimited leviathan nor a wimpy league of sovereign and independent states. It acts directly upon the individual citizens of the United States and is supreme in everything it does. The States have residual powers and rights, not delegated to the federal government, over issues of local prerogative as the state constitutions establish for themselves. But they are enjoined, in the Constitution, against doing a whole host of things, principally those things that the federal government is specifically empowered to do. They have no rights or powers to interfere in the enforcement of federal laws. The states are also not to withdraw from the general government under any pretext of legality. As for individuals, the language of the Constitution and the undeniable weight of all other varieties of evidence and documentation, suggest that their rights are the primary reason the government was established. In order to make that even more obvious, almost every amendment made to the Constitution relates to some province of individual rights and freedom that the government may not—explicitly—intrude upon, lest there be some misunderstanding in the foregoing articles. But the rights of individuals are not derived from the Constitution—a fact that the document explicitly recognizes—they are inherent in the nature of man. They cannot violate each other (thus there cannot be a right to life and liberty and also a right to own slaves or a right to the product’s of another’s labor) and they are the reason government’s are established—to preserve and protect these rights. Any Justice should boldly proclaim this and proudly recognize that the document they swear oaths to is the product of a nearly unprecedented and almost entirely unduplicated effort to create a government strong enough to survive but controlled and circumscribed enough to not squash the very rights it was called into being to protect. The fact that it remains in operation more than two centuries later through some of histories greatest conflicts and disasters is nothing short of wondrous. The fact that prospective Justice Kagan could not even affirm some sort of doctrine of natural rights is a sad and appalling sign of the state of the legal profession.


And so, now that I have publicly staked out such firm positions, I am further doomed should some misguided soul ever appoint me to the Supreme Court of the United States. But unlike Elena Kagan, I would never make fun of the non-informative and shallow nomination hearing process and then play right into that same process once nominated. I would, if nominated, answer candidly and honestly all questions asked of me. If it meant not being confirmed to the court, so be it. No prospective Justice should be so desirous of power as to adopt a policy of answering and at the same time not answering the questions of the Senate. And the Senators should not make honest answers, within a reasonable range of judicial and political disagreement (for instance, it is absurd to vote down a prospective justice because you happen to disagree on tariff policy while voting down a communist or fascist jurist would be most appropriate), grounds for denial. Such an attitude merely encourages and fosters the shallow, uninformative, and boring confirmation hearing process that now dominates.