Update [2005-5-6 13:23:23 by Armando]: From the diaries by Armando.
There's been no shortage of coverage of the nuclear option, here or elsewhere. Everyone knows this issue is a real turd in the punchbowl. But as we head into the weekend - and into the weekend talk shows - it might pay to recap just how underhanded the Republicans have been in selling this piece of crap. Therefore...
Weekend pundits: Here's a wrap-up of how the Republicans are:
1) Breaking the rules of the Senate
2) Lying about previous filibusters and attempts to change the rules
3) Writing inconvenient words out of the Constitution
4) Hiding from their own "nuclear" terminology
5) Lying about the legal theories supporting their power grab
6) Dealing in bad faith with Democratic Senators and the public
The Republican Nuclear Option Breaks the Rules
We begin with the mechanics of the maneuver itself. At bottom, the whole caper depends on the willingness of the presiding officer of the Senate, expected to be none other than Dick Cheney, to completely ignore precedent and the explicit advice of the official Senate Parliamentarian, and simply rule that the Republican majority can do pretty much as it pleases, so long as they can put together 50 votes. He'll provide the 51st. The Senate rules are clear: it takes 60 votes to end a filibuster, and it takes 67 votes to change the rules. But when Bill Frist asks Dick Cheney whether or not it'll be OK to simply do it with 51, he's going to say yes. When Harry Reid protests that that's totally nuts, 51 Republicans will vote to make him shut up, and that'll be the end of that.
Now, I did say that Dick Cheney will be ignoring all senate precedent to do this, but I wasn't exactly right. Senate precedent does say that Cheney isn't really allowed to just make a decision by himself when he's asked a Constitutional question. But he's planning to ignore that. Still, I do actually know of one other instance in which that precedent was ignored. The irony is that I only know about it because of a Republican press release from six years ago that griped:
"Under the uniform practices of the Senate, whenever a question of constitutionality is raised, the Chair submits the question to the Senate for decision. . . . [T]he Presiding Officer has no authority to pass upon a constitutional question, but must submit it to the Senate for its decision."
Republicans Lie About Previous Filibusters and Attempts to Change the Rules
What other relevant bits of history are the Republicans ignoring in their intellectually dishonest drive toward the nuclear option? By now we're all familiar with the ridiculous hair-splitting Republicans are resorting to in order to keep alive some part of the argument that the current filibuster threats are "unprecedented." We know about Abe Fortas, and thanks to Mark Schmitt at The Decembrist, we even know why the "never been a filibuster of a judge with majority support" dodge is shaky.
We should also note that the "Byrd did it" excuse, and its close cousin, the "Democrats have voted to eliminate the filibuster" excuse are equally questionable. For one thing, it should be (but apparently isn't) patently obvious that since the filibuster was never actually eliminated, then someone must have opposed the Democrats who moved to kill it. One guess who that might have been, and what arguments were used to support them. But one other crucial aspect of these past episodes is being ignored when these accusations of hypocrisy are leveled: every one of these past attempts to reform or eliminate the filibuster was made under the rules. Nobody ever actually attempted to break the rules in the way Republicans are plotting right now. All previous reforms were discussed at the beginning of a new Congress. And despite my doubts about the propriety of such parliamentary maneuvering, there is at least repeated and established precedent for the proposition that a new Congress offers an unique window of opportunity for this kind of reform. Precedent that is apparently too much of an inconvenience for Republicans. They plan to ignore it, and have the gall at the same time to accuse Democrats of breaking with tradition in this fight.
Republican Nuclear Option Theory Rewrites the Constitution Itself
I'll give Republicans a break, here at the midway point, and discuss something that might not necessarily be intellectual dishonesty, and might instead pass for mere stupidity. Specifically, the constitutional interpretation that argues that the "advice and consent" clause mandates an up-or-down vote on every judicial nominee.
Here's a question to which I've never gotten a satisfactory answer: Why must "advice and consent" be demonstrated by an up-or-down vote? I understand why one might think that consent can only be manifested in a vote of approval, but that still leaves every other option in the world open for the manifestation of that which is not consent. The only answer anyone has ever bothered to offer is that the "advice" part amounts to a Senate vote not to confirm.
But that's just nonsense. While there is indisputably only one way to manifest consent, there are innumerable ways to manifest not-consent. Besides a no vote, there's also withholding of consent, whether through a filibuster, failure to report a nomination out of committee (as we saw 60+ times over under the Chairmanship of born-again up-or-down-ista Orrin Hatch), or a vote against confirmation. Playing the strict constructionist game for a moment: I would challenge anyone to show me the text that says how anything other than consent is to be expressed. In fact, there's not even any text that says how many votes are necessary for confirmation, but I'm willing to give you that one for the time being, since at least there's an argument to be made that by not requiring a supermajority all that's necessary is a simple majority.
There's simply no hint whatsoever about how to express other-than-consent. And the notion that "advice" can't be given in any fashion other than a "no" vote is absurd. That construction changes the text to "no consent and consent," which is ridiculous on its face. Every other president - arguably precisely because the right to filibuster a nominee was always presumed to exist - has taken care to consult with Congressional leaders, home state Senators, members of the judiciary committee, etc. in naming his choices.
The Senate has no obligation to provide anything. While it's true that there is no other way for the president's nominations to receive their appointments, that says nothing about the Senate's obligations because there aren't any.
Technically, the way the path to a seat on the federal bench runs is that the president makes a nomination, but it only turns into an "appointment" - that is, something with legal force - once the Senate consents. So that consent is a necessary ingredient in a valid appointment, but so is the president's nomination, and the president isn't obligated to make a nomination just because he has the power to do so.
He may, if he chooses, decline to make an appointment. Even though the Constitution says he "shall" appoint them. The same goes for the Senate. We know what the Senate has to do in order to give the president's nominations legal force. But there's nothing that says they have to agree to go through with it.
And if there is an obligation to do something, the Republican argument still writes "advice" out of the Constitution. If "consent" can be demonstrated only by a vote in favor of confirmation, then "advice" must be something other than such a vote. Simple logic tells us that "advice" couldn't be defined as a vote against confirmation, or else, as pointed out above, the Senate's "obligation" would be to provide "no consent and consent" to the president's nominations. And "advice" can't be a vote for confirmation, because that makes the Senate's obligation "consent and more consent." So "advice," it seems, can't be given in the form of a vote at all. What "advice" might be, then, is anybody's guess. But one candidate worthy of consideration for filling that role might be the compromise offers made by Senator Reid. Whether you love or hate the offer, it's hard to see how the Constitution's provision for the Senate's "advice" couldn't include just such an offer, or indeed why it shouldn't.
That the rules are not to the President's liking is a different story. But that by itself doesn't create any new obligations on the part of the Senate. The Senate's obligations are contained in Article I. Advice and consent is a check against the presidency, which is why it's in Article II - the part of the Constitution describing (and limiting) the President's powers. It is a power they may invoke or not at their discretion. Just as the president's veto power is described not under his Article II obligations, but as an Article I check against Congress - it is a power he may but is not obligated to invoke.
Knock-Kneed Republicans Attempt to Duck Blame
Getting back into the more familiar territory of utter Republican bullshit, we will also all recall the foolish and short-lived lie that sought to pin the "nuclear" nomenclature on Democrats - that is, that Democrats were calling it the nuclear option because they planned to "shut down" the Senate in response. Having dispensed with that poorly-executed dodge, we should be clear about the fact that it's the nuclear option's utter disregard for the rules of law that makes it nuclear. The fact that its name has nothing whatsoever to do with the Democratic response ought to be clear from the very nature of that response. Democrats plan to move a positive legislative agenda in a post-nuclear Senate, and to do it in a way that will keep more Senators at their desks, doing more voting and more debating on more bills than ever before. It is, as I've said before, the polar opposite of a "shut down."
Top Republican Pundits Simply Lie About Their Legal Theories
The last few months of the nuclear option debate have been marked by concerted Republican efforts to change public opinion about the Senate's rules. Among the chief architects of this effort is C. Boyden Gray, former White House Counsel to George H.W. Bush. Gray's role has been to provide the theoretical and procedural underpinnings of the nuclear option, and to convince other pundits and the public of its legality. Typically, this is something an honest broker might want to do without lying or distorting the record of the academics supposedly supporting your position. So how is Gray doing on that score? Not very well:
C. Boyden Gray, former White House counsel for President George H.W. Bush, made false and misleading claims to promote the so-called "nuclear option" to ban Senate filibusters on judicial nominations. On the May 3 edition of MSNBC's Hardball with Chris Matthews, Gray noted that more judicial vacancies existed at the end of the George H.W. Bush administration than following the Clinton administration, but he failed to mention that this higher number was due largely to the 85 new judgeships created by Congress in 1990. Gray also misrepresented the work of University of Chicago law professor Cass R. Sunstein, citing Sunstein's evaluation of judges confirmed under the Reagan, George H.W. Bush, and George W. Bush administrations to claim that even Democratic allies agree with Republicans that the nominees Democrats have filibustered are not "extremist right-wing judges."
Now, this was something I first pointed out just about one month ago, but it bears repeating: Top Republican operatives are lying to the press and the public about the legality and support among academics for what they're doing.
Bad-Faith Republicans Sneak Disgraced Staffers Back Into the Meeting Room
Finally, we have the strange case of Manuel Miranda, the once-disgraced, now-embraced Frist staffer fired for stealing Democratic strategy memos on judicial nominations.
Let me repeat that, too: Senator Frist's counsel for judicial nominations was fired for stealing the Democrats' strategy memos on judicial nominations.
Unwilling to take the heat for this act of larceny, Frist cut Miranda loose. Miranda, presumably because he hates tort reform, sued. But that's not even the main story.
The story is this: Frist bought himself breathing room and an end to attacks on this score from Democrats by forcing Miranda out. But then he snuck him right back in through the back door! Another blatant "Go Cheney yourself!" to Senate Democrats! He fires the guy who steals their memos to mollify Dems, and then brings him right back to the table to run his judicial nominations strategy - and probably at a higher salary at that!
We might well wonder who's paying for Miranda to serve as "Chairman" of the "National Coalition to End Judicial Filibusters," given that the group seems to have materialized out of thin air. They have no web site, but there's no shortage of online citations connecting Miranda to the group.
So, where stands the investigation into Miranda's theft? And what of his lawsuit? Daily Kos commenter eafredel informs us:
The Justice Department referred this matter to the U. S. Attorney for the Southern District of New York for a full investigation. Mr. Miranda sued John Ashcroft and the Department of Justice in an attempt to block any criminal action. The District Court for the District of Columbia denied Mr. Miranda's request for injunctive relief and dismissed his complaint. The matter now is on appeal to the Court of Appeals for the District of Columbia.
Ah, just some added incentive for Miranda to push the nuclear option at all costs: Frist, Miranda and their cohorts intend to use it to pack that very same Court of Appeals for the District of Columbia with their nominees, Janice Rogers Brown, Thomas B. Griffith and Brett Kavanaugh. Won't that be convenient when his suit comes up?
In conclusion, ask yourselves: Should this much bullshit really be necessary for selling an initiative supposedly "upholding" the Constitution?