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One Last Go At It


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.

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.

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.

3. Your second point essentially restates your first point. Again, the Senate can make whatever rules it wishes, as long as it doesn’t do damage to the Constitution’s enumerated or separation of powers.

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.

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.

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.

In any event, my purpose is not to offend or prolong, and my ability to persuade you to my view has been unsuccessful. But others who bother to read these things can draw their own conclusions.