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Mark R. Levin, a Great But Misguided American


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Ramesh Ponnuru

He has been defending the view that filibusters of judicial nominees are unconstitutional, I’ve been saying that the Constitution allows (but does not require) them. I’m going to indent what he says in what follows. This is a “fisking” in form, although I hope without the air of self-congratulation or belittlement of my debate opponent that I associate with the word.

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Ramesh, let me take another whack at this, since your last post’s claims should be answered lest some Washington Post reporter or Senate Democrat misinterpret what’s being said. After all, this is not a mere rhetorical debate, and NRO’s official position has already been cited in the liberal media, and will no doubt be used on the Senate floor.

If Mark is saying that it is more important to combat influential errors than uninfluential ones, who could disagree? I hope he’s not suggesting that National Review should avoid taking positions that we think are correct just because Democrats will agree with them or find them useful.

1. Of course the Senate can make a rule that makes it more difficult for the Senate to pass a tax bill. Such a rule has nothing to do with the executive. It has no separation of powers implication.

I agree. But if Mark agrees, that means he is abandoning one of his earlier arguments for the unconstitutionality of the judicial filibuster. He said earlier that the Constitution specifies certain instances in which legislative supermajorities are necessary–in the ratification of treaties, for example. He claimed that where the Constitution did not specify a supermajority requirement, we should assume that such requirements were unconstitutional. I’m glad he has abandoned that view.

2. The function of nominating judges/justices is an executive function. Any comparison between an exclusively legislative function, in which the Senate makes its own rules, and the Senate making rules that directly affect the president’s judicial appointment powers, is specious. So, too, was another of your arguments, in which you compared a decision by the Senate Judiciary Committee to block a nominee with the Senate filibuster rule. Again, the full Senate can take up any issue that’s bottled up in, or defeated in, any of its committees. Indeed, it can bypass the committee structure altogether. The filibuster, of course, prevents the Senate from acting unless a supermajority can be achieved. So, the committee argument falls.

I don’t think that establishing that the power of nominating judges is “executive” gets Mark where he wants to go. (Is anybody in this debate or elsewhere suggesting that someone besides the president gets to nominate justices?) The Senate’s “advice and consent” role may be less important than the president’s nominating power, but that fact hardly settles whether the Senate may establish filibuster rules that touch on the execution of its constitutional duty.

Mark’s criticism of the “committee argument” makes no sense. I noted that judges don’t always have to clear committee. The Senate can bypass them. The Senate can dispense with filibusters, too, if it gets 51 votes to change the rules. If the fact that the way the Senate chooses to operate creates a de facto supermajority is a constitutional problem because the Constitution does not provide for such supermajorities, then the fact that committees can, in practice, sink nominees is also a problem for the same reason.

I’ll skip his third item, since I have no idea what he’s talking about.

4. Your most troubling argument is: “So are we then to retreat to the more limited position that the Senate can’t adopt a procedural rule that sets up a de facto supermajority requirement when it touches on a presidential power?” Retreat? This is exactly how one should interpret the Constitution, if you believe in trying to determine and apply its original meaning and intent as well as separation of powers, checks and balances, etc. I’d be willing to address any examples you’d like to provide for the opposite proposition.

I used the word “retreat” to describe what Mark would be doing if he dropped the claim that supermajority requirements not mentioned in the Constitution were unconstitutional. He has, as noted above, now abandoned this claim, which does constitute a retreat. As for the argument that a filibuster of judges unconstitutionally weakens the presidential power to nominate judges, I would be happy to address it should Mark ever make it. An assertion is not an argument.

5. The fact that in over 200 years of history senators have not sought to filibuster judges, or that you or no conservative has argued for the proposition that they should until the liberals began doing it, may well be the result of inattention, disinterest, or whatever. The issue isn’t one of proof but logic. There have been many heated judicial confirmation debates, and to conclude that senators (at least some) who are experts on their own rules would, during such occasions would be inattentive to, or disinterested in, using the legitimate power they have to win the day is far-fetched. You find this unpersuasive, so be it.

Nobody’s ever claimed that judicial filibusters were unconstitutional until recently, either, Mark. And there could be strong political norms that blocked filibusters in the past but weren’t actually in the Constitution. There are all kinds of political norms that are good for a country to have but aren’t in the Constitution. When those norms erode or die, there may be good reasons to mourn without thinking that the Constitution has been violated. Perhaps in previous generations, people would have thought that a final-vote-denying filibuster was unfair, or that the voting public would react strongly against it, or that it would bring some form of retaliation that made it not worth the cost. Bottom line here: The history isn’t determinative on the claim you’re making.

6. As for the Commerce Clause, I’m not sure what you’re getting at here. Let me just say that this is an enumerated power. Indeed, the promotion of trade and commerce was one of the driving reasons for calling a Constitutional Convention and dumping the Articles of Confederation. The Commerce Clause is to be limited by the definition of “commerce.” Judicial activists, especially after FDR sought to pack the Court, completely jettisoned this position in order to uphold New Deal programs. The 10th Amendment, which you raised earlier in response to an initial post, has nothing to do with this.

Mark, this is completely boneheaded. You’re the one who brought the commerce clause into the discussion. You said that the mere fact that the commerce clause did not specify that Congress could not regulate toilet flows did not mean that Congress could do so. You attempted to draw an analogy: The fact that the Constitution did not specify that the Senate couldn’t run judicial filibusters didn’t mean that it could run them.

I pointed out, first, that of course the commerce clause didn’t block Congress from exerting certain forms of authority. (It doesn’t authorize congressional regulation of toilets either, to forestall what will no doubt be Mark’s next misunderstanding of my position.) The clause is plainly a (limited) grant of authority to Congress. The fact that the Supreme Court has expanded its definition of the authority granted in that clause–and thereby weakened constitutional limits on federal power–has evidently confused Mark into thinking that the clause itself limits federal power.

Let me put it this way: The reason Congress does not properly have the power to regulate toilets is not that the commerce clause prohibits it from having that power. It is 1) that the clause doesn’t give Congress that power, 2) that nothing else in the Constitution gives Congress that power, and 3) that the Tenth Amendment reinforces the idea, already implicit in the Constitution, that Congress can’t assume a power the Constitution does not give it.

So Mark’s whole line of argument about the commerce clause was wrongheaded. We have reasons for thinking that Congress doesn’t have the power to regulate toilets. We have nothing like these reasons for thinking the Senate doesn’t have the ability to filibuster judges.



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