US Constitution:Article 2, Section 2, Clause 2: He shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .
[Juan:]The senators have to consent. In the case of the presidents' treaties (which affect their prestige and often policies much more than a mere judicial appointment) there even has to be a 2/3s majority in concurrence. Such a supermajority is not required for the appointments, but there is clearly no presumption that the president should be deferred to by the senate. The president should be consulting beforehand, which would have made consent easier to obtain. The issue isn't the filibuster. The issue is the
independence of the Senate and of the judiciary. The question is whether we have 3 branches of government, or only one.
Cass Sunstein puts it well:It may be granted that the Senate ought generally to be deferential to Presidential nominations involving the operation of the executive branch . . . The case is quite different, however, when the President is appointing members of a third branch. The judiciary is supposed to be independent of the President, not allied with him. It hardly needs emphasis that the judiciary is not intended to work under the President. This point is of special importance in light of the fact that many of the Court's decisions resolve conflicts between Congress and the President. A Presidential monopoly on the appointment of Supreme Court Justices thus threatens to unsettle the constitutional plan of checks and balances.
Madison became convinced that a large country could have a democratic government because its various local factions could never sufficiently unite to impose a tyranny of the majority: "the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest."
[...]
Madison was convinced by Hume that a federal government erected over a number of state governments, with a separation of powers, would be so beset by small diverse factions that no one could hope to impose its will on the entire country. So a country's very bigness could work, in a Madisonian system, to prevent a tyranny of the majority. [His concern was that a] simple majority rule would inevitably sacrifice the interests of the weaker party (even of the party with just 49 percent). How to avoid this tyranny of the majority?
[...]
The two-party system was itself a big step away from the Hume/Madison vision. But with with the regimentation of the parties made possible on a nation-wide basis by new media and new political techniques, and with the subordination of the judiciary to political party considerations, it has proved possible for the Republican Party to capture all three branches of the Federal government. In essence, the "large" and diverse Republic of the United States with many
unsubdueable factions is being reduced to being no different from the small and regimented demagogic "democracies" that Madison feared, dominated by a disciplined, majority faction.
Senator Joe Biden of Delaware in an appearance on MS-NBC's Hardball, made several important points about the risks involved in eliminating the filibuster. He notes that until 1947, judges had to be confirmed UNANIMOUSLY by Senate rules. This was because the constitution explicitly states:
US Constitution:
Article 2, Section 2, Clause 2: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .
The whole point is to ensure the independence of the judiciary. Each branch of the US Government is require by the Constitution to be independent so that they can check and balance the powers of the other branch. In fact, our forefathers, when they were writing the Constitution, the very right of the President nominating the judges at all was controversial. His role was passed by three votes. Our forefathers were very concerned about the tyranny of an authoritarian central leader who had too much influence on the other branches of government. The power of the Senate was to represent State's rights. They were to represent the states, not the majority. The government of the states were to counter balance the power of the Federal government. Our government has drifted a long way from the concepts of State's rights and the intent that they compete with each other to ensure balance, equity, and justice.
If 40 senators want to block anybody for nomination, they have the right to do that. And the reason they have the right to do that it`s the one bulwark against pure majoritarianism . . .In their heart, they know this is not the thing to do. This is a fundamental change in our constitutional system that exceeds the issue of judges. And it is dangerous. We are not a parliament. We were never intended to be. The states were intended to be equal. This will change that dynamic, not just for judges, but across the board.
Just the plain old politics in me says that the Faustian* bargain made with the Christian right -- and not all Christians are right and not all right Christians are Republicans . . .Well, guess what? Read what the scholars on the right are writing. They want to change the Constitution.
*To “strike a Faustian bargain†is to be willing to sacrifice anything to satisfy a limitless desire for knowledge or power.
Biden pointed out that over the history of America, twenty-four Supreme Court justices were rejected; fourteen of them were rejected in committee without a vote. The filibuster against Abe Fortas, the most recently rejected Justice, was led an honorable Republican named Griffin who became the minority leader from the state of Michigan. And when Franklin Roosevelt attempted to stack the Supreme Court to increase his power, it was Democrats in the Senate who stopped him.
The Constitution never intended that the President get his choice for judges. It was Madison's brilliant and delicate balancing of the realities of power, the President would propose a nominee, basically because a committee can never agree on a single candidate, and the Senate would dispose of inappropriate candidates.
Finally, Biden pointed out that the Democrats are not being obstructionist. Of the 215 nominees Bush sent to the Senate, 205 were accepted. Only ten were deamed so inappropriate to warrant opposition.
Juan
Cole's Informed Comment
US Constitution:
Article 2, Section 2, Clause 2: "He shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of
the Senators present concur; and he shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court . . ."
The senators have to consent. In the case of the presidents' treaties (which
affect their prestige and often policies much more than a mere judicial
appointment) there even has to be a 2/3s majority in concurrence. Such a
supermajority is not required for the appointments, but there is clearly no
presumption that the president should be deferred to by the senate. The
president should be consulting beforehand, which would have made consent
easier to obtain. The issue isn't the filibuster. The issue is the
independence of the Senate and of the judiciary. The question is whether we
have 3 branches of government, or only one.
Cass
Sunstein puts it well:
"It may be granted that the Senate ought generally to be deferential to
Presidential nominations involving the operation of the executive branch . .
. The case is quite different, however, when the President is appointing
members of a third branch. The judiciary is supposed to be independent of
the President, not allied with him. It hardly needs emphasis that the
judiciary is not intended to work under the President. This point is of
special importance in light of the fact that many of the Court's decisions
resolve conflicts between Congress and the President. A Presidential
monopoly on the appointment of Supreme Court Justices thus threatens to
unsettle the constitutional plan of checks and balances."
Moreover, it isn't just the senators who are consenting. It is the states.
When 54 senators impose a federal judge on 46 other senators by an "up and
down vote," in a wholly partisan fashion, it is actually 27 states imposing
their will on 23 other states. Because Madison lost the fight for proportional
representation in the senate, moreover, it is even possible for the 27 states
to have less population in total than the 23 states do. In fact, that is
presently the case.
So when Bush says the president's nominees deserve an up and down vote, and
given the tyranny in the senate of the Republican majority [which is a
minority population-wise], what he is really arguing for is an American
monarchy, backed by a King's Party. King George's appointees deserve to be
appointed because the King appointed them, and the Royal Will must not be
subverted. The senators do not have the right to advise or refuse to give
consent, in King George's reading of the constitution.
Karl Rove,
Bush's campaign adviser, has by virtue of highly efficient organization of a
very large all-American faction, i.e. the Republican Party (of which
the Founding Fathers would not have approved) negated the Republic that James
Madison bequeathed us and refuted Madison's optimism that democracy could
survive in large states as opposed to city-states.
Madison became convinced by
David Hume's argument
that a large country could have a democratic government because its various
local factions could never sufficiently unite to impose a tyranny of the
majority: "the parts are so distant and remote, that it is very difficult,
either by intrigue, prejudice, or passion, to hurry them into any measures
against the public interest."
What KarlRoveWorld has done to the contemporary United States is to undermine
Hume's argument concerning "the falsehood of the common opinion, that no large
state, such as France or Great Britain, could ever be modelled into a
commonwealth, but that such a form of government can only take place in a city
or small territory." The fear was that such a big country was so unwieldy that
there would be a tendency for a central authoritarian ruler to emerge.
Madison was convinced by Hume that a federal government erected over a number
of state governments, with a separation of powers, would be so beset by small
diverse factions that no one could hope to impose its will on the entire
country. So a country's very bigness could work, in a Madisonian system, to
prevent a tyranny of the majority.
Madison in Federalist
Papers #10 made his terror of the demagogic tyranny of a "democratic"
majority quite plain:
"By a faction, I understand a number of citizens, whether amounting to a
majority or a minority of the whole, who are united and actuated by some
common impulse of passion, or of interest, adversed to the rights of other
citizens, or to the permanent and aggregate interests of the community . . .
From this view of the subject it may be concluded that a pure democracy, by
which I mean a society consisting of a small number of citizens, who
assemble and administer the government in person, can admit of no cure for
the mischiefs of faction. A common passion or interest will, in almost every
case, be felt by a majority of the whole; a communication and concert result
from the form of government itself; and there is nothing to check the
inducements to sacrifice the weaker party or an obnoxious individual. Hence
it is that such democracies have ever been spectacles of turbulence and
contention; have ever been found incompatible with personal security or the
rights of property; and have in general been as short in their lives as they
have been violent in their deaths."
So simple majority rule would inevitably sacrifice the interests of the weaker
party (even of the party with just 49 percent). How to avoid this tyranny of
the majority?
Madison explains that a large representative republic could avoid the
regimented, despotic majority that might emerge in a small, pure democracy:
"Extend the sphere, and you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole will have
a common motive to invade the rights of other citizens; or if such a common
motive exists, it will be more difficult for all who feel it to discover
their own strength, and to act in unison with each other. Besides other
impediments, it may be remarked that, where there is a consciousness of
unjust or dishonorable purposes, communication is always checked by distrust
in proportion to the number whose concurrence is necessary. Hence, it
clearly appears, that the same advantage which a republic has over a
democracy, in controlling the effects of faction, is enjoyed by a large over
a small republic, -- is enjoyed by the Union over the States composing it.
Sorry, Jim. It is over.
The two-party system was itself a big step away from the Hume/Madison vision.
But with with the regimentation of the parties made possible on a nation-wide
basis by new media and new political techniques, and with the subordination of
the judiciary to political party considerations, it has proved possible for
the Republican Party to capture all three branches of the Federal government.
In essence, the "large" and diverse Republic of the United States with many
unsubdueable factions is being reduced to being no different from the small
and regimented demagogic "democracies" that Madison feared, dominated by a
disciplined, majority faction.
In other words, the United States of America is on the verge of looking an
awfully lot like Algeria did in fall of 1991, when the Islamic Salvation Front
was poised to exercise a tyranny of the majority in that country.
Senator Joe Biden of Delaware
made the most eloquent and concise case against a tyranny of the majority on
Hardball the other night.
MATTHEWS: Welcome back to HARDBALL.
This afternoon, Senate Majority leader Bill Frist offered Democrats 100
hours of debate on President Bush`s judicial nominees, including those
future nominees for the Supreme Court, if they agreed on an up-and-down vote
on each nominee.
Democrats have so far not agreed to this proposal. And earlier today, I
asked Democratic Senator Joe Biden of the Judiciary Committee what he makes
of the offer.
SEN. JOSEPH BIDEN (D), DELAWARE: It`s ridiculous.
Look, this whole thing underscores they don`t understand the Senate. Up
until 1947, there wasn`t -- you needed a unanimous consent. From the time of
the Constitution to 1947, you needed unanimous consent in order to get a
judge through. They changed the rule in 1917 to say you could have - -
three-fifths of the senators could vote to cut off debate on legislation,
but they said but not for nominees, because the founders never intended
that.
This is all about the independence of the judiciary. When you go to the
point where you can have 51 senators make a decision on every single --
imagine if that rule had been in place when Roosevelt tried to pack the
court. What would have happened?
MATTHEWS: He would have done it.
(CROSSTALK)
BIDEN: You`re darn right he would have done it. This is time for a couple
people of little -- as Hamilton said, a moral rectitude to stand up in the
Senate and understand the institution. This is not the House of
Representatives, as noble as it is.
It was intended to be a totally different institution. They`re about to make
this a parliament. They`re about to make this the president, the prime
minister. And these guys on his side act as if they work for him. They are
independent equals . . .
MATTHEWS: How about the president getting involved? He`s not a member of the
legislature.
BIDEN: Well, the president getting involved, he has a right to, but it
crosses, it trenches upon the powers of separation.
What everybody kind of forgets is, there was a specific reason why they
said, let the Senate dispose of all nominees. The president can propose. The
Senate disposes. During those debates on the Constitution, there was no one
single time where more than, I think, three votes for allowing the president
even in on the deal. The only reason it got to the end was, this is about,
look, this is not about equality.
This is about every state, every state having the same power as every other
state. If you go by majority vote up there, what people don`t realize is,
there are 54 Republican senators. We 46 Democrats represent more of people
in America than the 54 of them. You want to do this by majority rule,
popular will? That`s not what the Senate is about.
MATTHEWS: So you`re against this proposal of 100 hours?
BIDEN: Absolutely, positively.
MATTHEWS: And you answer is -- why are you against 100 hours? Isn`t that
enough to debate?
BIDEN: I`m against the 100 hours because it is not enough for debate. If the
Senate wants to block extreme -- even if they`re not extreme. If 40 senators
want to block anybody for nomination, they have the right to do that. And
the reason they have the right to do that, it`s the one bulwark against pure
majoritarianism . . .
BIDEN: In their heart, they know this is not the thing to do. This is a
fundamental change in our constitutional system that exceeds the issue of
judges. And it is dangerous. We are not a parliament. We were never intended
to be. The states were intended to be equal. This will change that dynamic,
not just for judges, but across the board.
MATTHEWS: Where is this coming from? Is it coming from the interest groups,
from the Republicans in the Senate, this push to get rid of the filibuster,
this -- what you call this strong effort, or is it coming from the White
House?
BIDEN: I think it`s coming from the White House. I don`t know. The honest
answer is, I don`t know.
But I think it`s coming from, it appears, from a distance. Just the plain
old politics in me says that the Faustian bargain made with the Christian
right -- and not all Christians are right and not all right Christians are
Republicans . . .
MATTHEWS: Is this a preliminary to the fight over the Supreme Court if
Rehnquist steps down?
BIDEN: Absolutely. Absolutely, positively, it is. And, again, you`re talking
about, read what they are saying. Read what these guys write. I remember
being on your show three years ago. And we talked about the neoconservatives
on foreign policy.
MATTHEWS: Right.
BIDEN: Bright, honorable, patriotic people. And I said they`re talking about
leveraging power. You had read what they wrote, but everybody else kind of
wrote to me and said, you`re kidding. These guys don`t mean that.
Well, guess what? Read what the scholars on the right are writing. They want
to change the Constitution.
MATTHEWS: OK, the tough question for you. When this is all over, the people
will still say, not just conservatives, it seems to me that the president of
the United States goes and picks a person he wants to see, an appellate
court judge, a federal court judge. You guys on the Hill take it upon
yourself, the right, to say, not only will we not approve him. We won`t
bother doing anything with him. We will just sit on that nomination.
And you believe that`s the constitutional right of the United States Senate,
to do that?
BIDEN: Absolutely; 24 Supreme Court justices were rejected; 14 didn`t get a
vote. Hear me? Fourteen never even got a vote.
Guess who led the filibuster against Abe Fortas and defeated him by a
filibuster? An honorable Republican named Griffin who became the minority
leader from the state of Michigan. Look who stood up to Roosevelt. It was
Democrats in the Senate who stood up and said, whoa.
This idea that the president gets, is entitled to who he wants on the court
is the most bogus argument in American, modern American history. It was
never, never, never intended that. The reason why the founders said the
president would [propose]-- and the Senate should dispose is -- was, we --
all senators couldn`t come together on a single person. A single man can
pick a single person more easily. But then it`s up to the senators to
dispose of whether or not that person is the right person.
And this is just a bogus notion. And this president is not -- look, 215
people he sent us, we passed through 205, and we are being obstructionists?
MATTHEWS: OK. Senator Joe Biden, thank you, sir.
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