"Nuclear" attack on the Constitution and NCIL Funding Alert
May, 2005
1. "Nuclear" attack on the Constitution
2. NCIL Funding Alert1. A `nuclear' attack on the Constitution Changing the Senate's filibuster rules a dangerous option
By Geoffrey R. Stone, a law professor at the University of Chicago and the author of "Perilous Times: Free Speech in Wartime." Published May 1, 2005
The Bush administration and Senate Majority Leader Bill Frist are frustrated. The Senate has confirmed "only" 90 percent of the president's nominees for the federal bench. So now they are threatening to cripple a centuries-old Senate procedure in order to prevent any further "obstructionism" by the Democrats. This has aptly been labeled "the nuclear option."
The key issue is the filibuster. Under Senate practice, 60 votes are necessary to invoke cloture against a filibuster. Because the Republicans control only 55 votes in the Senate, they cannot prevent the Democrats from using the filibuster to block confirmation of a judicial nominee. Frist wants to eliminate the traditional supermajority requirement for cloture and allow a simple majority to shut off debate. This proposal is unwise, cynical and contrary to long-standing Senate tradition.
It is useful to go back to the beginning. At the Constitutional Convention in 1787, the framers clearly intended the Senate to play an active role in giving its advice and consent to judicial nominations. Indeed, until the very last day of the convention, the framers had assigned the power to nominate judges to the Senate, rather than the president. They were concerned that an overbearing executive might exercise undue authority if granted the power to nominate federal judges, who would serve for life. It was only on the final day of the convention that the framers decided that it would be too unwieldy for a multimember body to make nominations and reluctantly assigned the responsibility of nomination to the president.
That the Senate would play an aggressive role in reviewing judicial nominations was evident from the earliest days of the Republic. George Washington's nomination of John Rutledge as chief justice of the U.S. Supreme Court was rejected by the Senate because of opposition to his stance on Jay's Treaty. During the 19th Century, the Senate refused to confirm 25 percent of all Supreme Court nominations.
This brings us to the filibuster. The primary objection to the filibuster is that it is countermajoritarian. That is, it enables a minority of senators (41 in the current Senate) to block proposed legislation and nominations. But there is nothing odd about that. In a government determined to avoid "capture" by any faction and designed to protect minority as well as majority interests, our entire government's structure of checks and balances is deliberately premised on countermajoritarian procedures.
Consider the Electoral College. George W. Bush won the 2000 election even though he received 500,000 fewer popular votes than his opponent. What could be more countermajoritarian than that? Indeed, the Senate itself was quite consciously designed to be countermajoritarian, with two senators from each state, regardless of population. As a consequence, although the Republicans currently have 55 senators, they represent well under half the people in the United States. Countermajoritarian processes are fundamental to the American system because they protect substantial minority interests against the bullying of marginal and transitory majorities.
The Senate filibuster is a classic example of such a procedure. The filibuster has been recognized by the Senate at least since 1790. Although it has been used most often to force compromise on proposed legislation, it has also been used to encourage compromise on executive and judicial nominations. The filibuster was first used to block a judicial nominee in 1881, when it was invoked against Rutherford B. Hayes' nomination of Stanley Matthews to the U.S. Supreme Court. (Matthews was eventually confirmed.) From 1950 to 2000, the filibuster was used at least 17 times in the context of judicial nominations, most famously in the successful effort of Republicans to derail President Lyndon B. Johnson's nomination of Abe Fortas as chief justice in 1968.
Now, however, Senate Republicans threaten to change the Senate rules to prohibit any filibuster of a judicial nomination. Even worse, although Senate rules provide that any change to the filibuster requires the support of 60 senators, Frist has declared his intention to override that rule as well. In this brave new world, 51 Republicans will arrogate to themselves the authority to change the rule on changing the filibuster so that 51 Republicans can then absolutely determine, without any meaningful input from anyone else, who will serve on the federal bench.
This may not, technically, be unconstitutional or unlawful. But it is surely a dangerous abuse of power. Whatever the merits or deficiencies of the filibuster, they have nothing to do with Frist's nuclear option. This is about raw power. It is about power exercised in a manipulative manner purely for the sake of partisan advantage. The greatest threat to American democracy is the risk of capture. It was this danger that worried the framers most. The nightmare scenario is a moment in time in which one faction gains control of the White House, the Senate, the House and the judiciary, then uses that dominance to redesign the processes of government to ensure its perpetuation in power. If ever American citizens needed to be vigilant, it is now.
When President Franklin D. Roosevelt attempted a similar maneuver with his court-packing plan in the 1930s, Democrats as well as Republicans rightly objected. We can only hope that at least a handful of Republicans have the independence, the courage, the integrity, and the commitment to our nation's most fundamental values to stand up to Frist's dangerous and cynical nuclear option.
Kendra-Sue Derby
Director of Grassroots Operations
Alliance for Justice
11 Dupont Circle, NW
Second Floor
Washington, DC 20036
202-822-6070 phone
202-822-6068 fax
THE SO-CALLED NUCLEAR OPTION: BREAKING THE RULES TO CHANGE THE RULES
Checks and Balances - The Framers of the Constitution wanted the Senate to be a deliberative body of equals, unlike the House of Representatives which was designed to be a representative, majoritarian body. George Washington likened the Senate to a tea saucer, saying that the framers created the Senate to "cool" the passions of the House, just like a saucer is used to cool hot tea. This design allows small states to wield as much power as large states, and through the opportunity for full debate on all issues, protects minority rights from the tyranny of the majority.
Standing Rules - The 216 year-old Standing Rules of the Senate govern how the body conducts business. These Continuing Rules do not end with the legislative session like the House of Representatives. The Senate's Standing Rules carry over from session to session since it is a continuing body, with the terms of only one-third of its membership ending at the end of each legislative session. Under the Senate's Rules, unanimous consent of the chamber is required to conduct most day-to-day business. For example, one Senator can object under unanimous consent to moving a bill or nomination. In order to overcome the objection, 60 senators must vote to close debate (cloture). There is no distinction made between nominations and legislation.
Breaking the Rules - Changes to the Senate's Standing Rules that govern how filibusters are ended requires a two-thirds majority (67 votes). Under the rules, floor debate - filibusters - can be ended in a cloture vote with the support of 60 Senators in a cloture vote. Changing this practice requires a supermajority of 67 votes. The only way to change the Standing Rules with a simple majority of only 51 is to break the Senate's Standing Rules.
2. NCIL ACTION ALERT
Date: April 28, 2005
Alert Initiator(s):Bob Michaels, NCIL Rehabilitation Act Subcommittee Chair Kelly Buckland, NCIL Vice President
Background: NCIL recently submitted written testimony (see attachment) urging Congress to authorize an additional $25 million in funding for FY '06 to help address the unmet needs of persons with disabilities. Although Title VII, Part C Appropriations have grown from $39.96 million in 1998 to $75.39 million in 2005, the rate of funding increases has slowed substantially in recent years. NCIL needs your help to put us back on track!
Actions needed:
Send an email to your elected representative and senators. Call your elected representative and senators (same website) Call the Appropriations Subcommittee chairs in the House (Ralph Regula - (202) 225-3876) and Senate (Arlen Specter - (202) 224-4254)
Message: "Centers for independent living save Americans millions of dollars every year by helping people with disabilities return to their communities. Please sustain center efforts by supporting a $25 million increase in funding for Title VII Part C of the Rehabilitation Act."
(Please copy your emails to: Daniel Davis)
For more information, contact:
NCIL Policy Analyst, Daniel Davis.
Subcommittee Chair, Bob Michaels
NCIL Vice President, Kelly Buckland
Deadline: May 6, 2005Member Benefits | About AAPD | Join | Disability Resources | News | Contact Us | Calendar | Home