The Nuclear Option, redux

Hugh Hewitt takes umbrage at a couple of McCain speeches, where (at least in the WaPo's characterization, for whatever that's worth) McCain apparently "defended his participation in the bipartisan 'Gang of 14' compromise in the Senate, saying that compromise helped ensure the confirmation of many of Bush's judicial nominees."

"[C]omplete nonsense," says Hugh: until "the time that Senator McCain engineered ... the issue of the radical assault on the judicial nomination process by the hard left edge of the Senate Democrats and the groups they serve was the central issue of domestic politics. And because of Senator McCain, the GOP lost the opportunity to win that issue and restore the Constitution's design." This is new bottles for old wine for Hugh, and regular readers will recall that I don't have a very high opinion of him for it (full disclosure: Hewitt sacrificed any credibility in my eyes on the issue of "restor[ing] the Constitution's design" by his ignoble behavior during Miers fiasco).

Well, folks, I suppose this means that we aren't done with the nuclear option controversy just yet, given McCain's ambitions for 2008. This issue is going to put me into the awkward position of defending a candidate I don't particularly like for undertaking an action that made it harder to achieve something I wanted to happen. It was, unfortunately, still the right thing to do.

The argument that McCain is the bad guy in the judicial confirmation saga puzzles me somewhat, insofar as it seems misdirected.

In the first instance, for those who do strongly believe the filibuster should have been eliminated, it seems that the object of hostility for the failure to do so should be Frist, not McCain. Why focus blame on McCain for frustrating an option that only became necessary as Plan B because Frist blew Plan A, failing to move to change the rules so as to eliminate the filibuster at the convening of the 109th Congress, when he could have done so legitimately? If Frist had done so, I think that you'd have seen people - me included - who don't have a particularly strong opinion either way on the filibuster, but who very much want to get those judges confirmed, fall in line and "go along to get along." I said the same thing last month, when we thought we were keeping the Senate: that if the putative Majority Leader McConnell moved to eliminate the filibuster, I'd support that, but if he didn't, I wasn't changing my mind on the nuclear option, so we might as well just do it properly, at the convening, and avoid the controversy.

In any event, for better or worse, in my view, once Frist let that ship slip the harbour walls, it had sailed. Because I continue to believe that the nuclear option was unconstitutional (concededly an inelegant way to phrase the point, but you get the meaning), and have no strong view on whether the filibuster should or should not be eliminated as a normative matter, I don't share the hostility of so many towards McCain re the Gang of 14 deal. I suppose that hostility might make some sense from those who believed passionately that the filibuster not only should be elimiated, but that the Constitution demanded it, and it's possible that McCain did what he did in bad faith (that is, as his detractors allege, in service of his own image and publicity), rather than because he shares my assesment of what the Constitution requires and permits, but I have the feeling that a lot of people have been angry at McCain (not an unreasonable position, by any means) for a long time, and have fited each new perceived heresy into a pre-existing dislike.

My view remains that it is fully within the power of a legislative body to adopt a de jure or de facto supermajority requirement.

Now, to be sure, the Constitution was not adopted in a vacuum, and I have argued - often to the irritation of some conservatives and strict constructionists - that it must be read in the context of the time in which it was adopted. Thus, I would accept the argument that the framers' expectations of how Congress would operate may probably be found in the operation of the legislative assemblies that preceded it - the British Parliament, the thirteen state legislations and the Continental Congress. And if it were definitively established that it was absolutely unheard of in 1788 that a legislative body conduct all business in anything other than a purely and strictly majoritarian manner, and if there were no Constitutional text to the contrary, that might suffice to support an original meaning argument that the Congress was expected to conduct itself in a purely majoritarian fashon.

However, not only has that proposition not been definitively proven, there is Constitutional text that, in my view, clarifies the situation. Those sneaky framers! All the originalist analysis in the world about what might be implicit in the Constitution is insufficient to trump an originalist analysis (or even just a logical one) of the explicit grant of power of the rules & procedings clause. The rules & procedings clause provides that "[e]ach House may determine the rules of its proceedings." It's hard to get clearer than that: if it's a rule that relates to how the House or Senate conducts its business, it's within the scope of the clause. The only rules that are not permitted are those found elsewhere in the Constitution's text or structure - the Senate couldn't have a rule, for example, that required the House to pass on all nomination first, for example, or have a rule that a simple majority was enough to remove someone from office on conviction of an impeachment.

What this means is that, as I said above, it is fully within the power of a legislative body to adopt a de jure or de facto supermajority requirement - as much so now as it was when we Republicans put one into place when, in 1995, we had "the House of Representatives adopt[] a rule that requires a three-fifths majority of those voting to pass an increase in income tax rates."1 It seems clear to me that that the House had the power under the rules & proceedings clause to pass a rule requiring a three-fifths majority to pass an increase in income tax rates, a de jure supermajority rule. It also seems clear that it is also clearly within the scope of setting rules for the procedings that the Senate places business onto the calender and usually brings it to the floor by unanimous consent2 a de facto supermajority rule. If would seem anomalous if it were a legitimate use of the rules & procedings clause to create a rule that requires, in effect, one hundred votes to start debate, yet not one that required a substantially smaller number of votes to end debate.

The people who were all for the nuclear option are mad at McCain for stopping it, because in their view, it was a good idea that might have aided the cause. Would it? I don't know; I was undecided then and remain so today on the merits of eliminating the filibuster, but the threshold question was whether the Constitution permitted it to be eliminated by the mechanism that was proposed. I didn't (and don't) believe that it does. To be sure, I want to ensure the confirmation of Judges who will move the U.S. closer to the Constitution, but not at any cost: it would be absurd to support the use a mechanism that gets us further from the Constitution to appoint such judges. Unfortunately, I seem to be virtually the only person on the right who was very much opposed to the nuclear option. Which doesn't bode well for McCain. LOL.

Bottom line - there are surely far better reasons to be mad at McCain, starting with BCRA.

Post facto:
Filibusters (11/11/07)
My man Mitch (6/4/08)
Ten things that aren't changing (11/5/08)
It's back... (2/6/10)

1. 1. McGinnis & Rappaport, The Rights of Legislators and the Wrongs of Interpretation: a Further Defense of the Constitutionality of Legislative Supermajority Rules, 47 Duke L.J. 327 (1997).
2. 2. See J. Schneider, House and Senate Rules of Procedure: a Comparison, CRS RL30945 (2003) at pp.6-7 ("[l]egislation reported from committee [is] referred to the Calendar of Business, or placed on this calendar by unanimous consent ... The Senate Majority Leader has the authority to raise measures for Senate floor consideration [and] [m]ost measures reach the Senate floor either by a simple unanimous consent request, or under a complex unanimous consent agreement") (emphasis changed)