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Bench Memos

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I Join Brother Franck



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I abide by Andy McCarthy’s original view that the filibuster rule is constitutional. I’ll add just a few observations to what Matthew Franck has said.

Andy’s example of a Senate rule enabling consideration of presidential appointees only in even-numbered years is, I think, ultimately an appeal to what I will label the fallacy of constitutional perfectionism–namely, the view that if something really bad or abusive might happen, it must be unconstitutional. Generally, a full answer to such examples is that the political process that the Constitution allows will provide the means to correct the abuse. On his example, if the Senate’s action were in fact to be regarded as irresponsible, the populace could put heat on the Senators, and the Senate could quickly change the rule. The key here, of course, is recognizing that the Senate’s plenary power to determine its rules may be exercised at any time by a majority of the senators–or, more precisely, by a majority of a mere quorum. In other words, the Senate may not bind itself even for a single session (or a single week). That also explains why the Senate rule purporting to require a 2/3 vote on cloture for a change to the rules is unconstitutional–and why the Senate can (and in my view should) eliminate the filibuster for judicial nominees.

I also question whether the line Andy draws between those matters where the Senate would have the right to filibuster and those where it wouldn’t can be maintained. Assume, for example, a filibuster of a DOD appropriations bill. That could severely impair the president’s commander-in-chief authority. Which side of the line would it fall on?

One smaller sidepoint: I believe that it was only in Cooper v. Aaron in 1958 that the Court first asserted its preeminence in interpreting the Constitution. The Left has tried to reread Marbury that way, but Marbury stands for the far more limited proposition that the Court may determine the constitutionality of laws in cases that come before it.



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