Thursday, May 20, 2004

Flashback Thursday

Let's use fundraising week to remind ourselves of some of my finer moments here at Eschaton (suggestions welcome, too).

Here's where I let George Will hang himself by his own sweet words. From 2/28/03.

George Will, Then and Now


Lloyd Cutler is a liberal critic of Senate Rule XXII that requires 60 votes to curtail debate by imposing cloture. He is a distinguished Washington lawyer, seasoned by public service (he was President Carter's counsel) that unfortunately did not inoculate him against the temptations of institutional tinkering. The tinkering he favors would facilitate the essence of the liberal agenda - more uninhibited government. For example, a decade ago he recommended various reforms to undermine what he called an "anomaly" and what the Framers considered the essence of the constitutional system - the separation of powers.

Cutler's argument for the unconstitutionality of Rule XXII is:

"The text of the Constitution plainly implies that each house must take all its decisions by majority vote, except in the five expressly enumerated cases where the text itself requires a two-thirds vote: the Senate's advice and consent to a treaty, the Senate's guilty verdict on impeachments, either house expelling a member, both houses overriding a presidential veto and both houses proposing a constitutional amendment."

But the Constitution "implies" no such thing. Cutler's semantic sleight-of-hand is in the words "must take all its decisions." The Constitution provides only that, other than in the five cases, a simple majority vote shall decide the disposition by each house of business that has consequences beyond each house, such as passing legislation or confirming executive or judicial nominees. Procedural rules internal to each house are another matter. And the generation that wrote and ratified the Constitution - the generation whose actions are considered particularly illuminating concerning the meaning and spirit of the Constitution - set the Senate's permissive tradition regarding extended debate. There was something very like a filibuster in the First Congress.


The president, preoccupied with regime change elsewhere, will occupy a substantially diminished presidency unless he defeats the current attempt to alter the constitutional regime here. If at least 41 Senate Democrats succeed in blocking a vote on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the Constitution effectively will be amended.

If Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.

That was easy. Next?

haha. I hate George Will. Smug overrated hack.

...oh, and here's the Findlaw column that post eventually indirectly inspired.