To Filibuster, or nix the Filibuster... (US Senate)

[kylie]

          Anyone thoughts on the merits of dropping the filibuster from the US Senate rules? 

http://www.latimes.com/news/opinion/la-oe-meyerson14-2010jan14,0,5314241.story?track=rss

... As the most senior members were often Southern segregationists, the power of the chairmen doomed civil rights legislation until the 1960s and impeded other progressive initiatives through the 1970s.  It was only then that a legislative genius named Phil Burton -- the liberal San Francisco congressman who dominated the House during that decade -- persuaded House Democrats to elect their chairmen rather than rely solely on seniority. With that, the most conservative House Democrats began to vote more like their more numerous liberal colleagues.

     Burton died in 1983, but a number of his proteges -- in particular Pelosi, Miller and Waxman -- are leading figures in Congress (and his brother, former congressman John Burton, chairs the California Democratic Party). More important still is the lesson that Burton offers to liberals today: To secure social reform, you sometimes have to blow up the legislative processes that block majority rule. In the '60s and '70s, that meant changing the rules of the House. Today, it means abolishing the filibuster in the Senate.

http://www.nytimes.com/2010/01/14/opinion/14collins.html

There are 100 members of the Senate. But as Brown is currently reminding us, because of the filibuster rule, it takes only 41 to stop any bill from passing.

U.S. population: 307,006,550.

Population for the 20 least-populated states: 31,434,822.

That means that in the Senate, all it takes to stop legislation is one guy plus 40 senators representing 10.2 percent of the country.

[kylie]

http://www.nytimes.com/2009/12/21/opinion/21krugman.html?scp=4&sq=filibuster&st=cse

We need fundamental financial reform. We need to deal with climate change. We need to deal with our long-run budget deficit. What are the chances that we can do all that — or, I’m tempted to say, any of it — if doing anything requires 60 votes in a deeply polarized Senate?  ... [snips]

... The political scientist Barbara Sinclair has done the math. In the 1960s, she finds, “extended-debate-related problems” — threatened or actual filibusters — affected only 8 percent of major legislation. By the 1980s, that had risen to 27 percent. But after Democrats retook control of Congress in 2006 and Republicans found themselves in the minority, it soared to 70 percent.

Short essay history of the filibuster:  http://topics.nytimes.com/top/reference/timestopics/subjects/f/filibusters_and_debate_curbs/index.html?scp=1-spot&sq=filibuster&st=cse 

          To start on the other side a bit, too...  http://www.realclearpolitics.com/horseraceblog/2009/12/why_the_filibuster_is_more_ess_1.html

     As the parties drift apart ideologically, the majority party will more likely introduce legislation that the minority party can't accept, giving the latter a stronger incentive to block it via the filibuster. Using the filibuster is thus a rational response when one finds oneself in the smaller half of a polarized chamber, which is more likely to be the case today than 45 years ago.

This points to a highly beneficial purpose the filibuster can serve. Per Klein, it is indeed an obstructionist tool, but it is also a way to promote moderate policies, even as the parties have become more ideologically extreme. In other words, thanks to the filibuster, an ideologically extreme majority party cannot simply enact its policy preferences as it sees fit. Instead, it must either find common ground with some on the other side, or do nothing.

A problem with this is that one side obviously stands to gain from the current party doing nothing -- namely, the minority party which created many of the problems and is visibly cheering for the present government to fail.  The Republicans have a vested interest in distinctively Democratic policies not even being tested in relatively moderate force: They can always say, "See that was unpopular" or "See, it wasn't crafted properly" after threat of a filibuster has gutted the project to start with.  However, there may be very negative consequences if the administration policies are continually watered down to the extent, say, healthcare has been.  This also has the effect of increasingly distancing executive ideology from legislation -- hardly something we would have associated with say, the Bush administration.  Separation of powers is one thing, but a total disconnect between the branches is quite another.

[Jude]

I would argue that the Filibuster actually doesn't keep policy moderate in terms of the overall political spectrum, just that it keeps policy somewhere between the two parties.  In other words, if you have a far right party and a moderate left party, the midpoint between the two is not the actual center, but center-right.

Bipartisanship in general is very flawed in Washington, because even if you're aiming to make center-right policy, there's still a reward for being as extreme as possible in your initial offerings in order to give yourself more bargaining room to "give up" during the negotiations process and ultimately come up with center-right policy.  For example, the Democrats have been criticized for starting from the Public Option instead of starting from Single Payer, because they had less to give up along the way while negotiating.

The political lessons I've personally taken from 2006-2010 are disheartening.  Even though Republicans lost the 2006 and 2008 elections, Democrats really haven't managed to get a whole lot of their agenda through, and I fault procedure for a lot of the failings.  A couple of things I noticed...

1)  The way Senators are elected is extremely counterproductive.

You can't have a complete changing of the guard that reflects the mood of the populace because you're only cycling out a third of the U.S. Senate every 2 years.  As elections are becoming increasingly contentious (such in the case of Franken v Coleman), some seats remain in limbo for long periods of time.  That means each incarnation of the Senate only has two years to pass legislation, hold hearings, debates, et cetera.  Add in Holidays, Filibusters, deaths, unexpected vacancies, Amendments offered by the minority party simply for the sake of stalling, and you get a Senate that is a very inefficient body.  Not to mention it costs the taxpayers money to have 3 elections during the course of every Senator's term.  The consequences this has on presidential politics, the quality of legislation, etc. is very dire.

2)  Senators are way too powerful.

Joe Lieberman is a perfect example of this:  one man can hold the Legislative Agenda of both the Senate and the House of Representatives hostage, if he so chooses.  He wasn't even reflecting the will of his constituents.  And all of that power concentrated in one individual makes them way too easy to bribe or otherwise influence.  News stories about C-Street, political corruption, and stealth senatorial proceedings leave me feeling pretty cynical about our government's structure.

3)  The American People have ADD.

The populace expects far too much of the current political system.  Barack Obama has essentially set about doing what he said he would while campaigning, and yet his approval ratings have plummeted below the percentage of people who voted him into power.  He received the majority of the popular vote, but in a recent poll only 39% of people say they would re-elect him if a vote was held tomorrow.

In a lot of ways we, as a people, glorify political candidates during the campaign season and then find ourselves disappointed when our elected officials don't walk on water to save a kitten from terrorists while reducing unemployment, serving as the head of their political party so their power base isn't undermined in the Senate, and dealing with the day to day duties of the President.  We expect far too much far too quickly, then change course when we don't get it.  This results in a rubber-banding effect, that creates a political climate in which government fails to do anything substantial.

Solution?  Don't get rid of the filibuster, get rid of the Senate.  It's a poor analogy, but the bicameral nature of Congress is comparable to using two condoms while having a one night stand.  At the time of the Constitution, it was a brilliant compromise which helped establish our nation and made complete sense.  Today, things have changed.  Technology enables us to deal with a larger governing body, the disparity in population between smaller states and larger states has grown, and the trouble with having a 100 person 'legislative checkpoint' at the helm of the country is becoming very apparent as political corruption becomes so prevalent.

Practically speaking, it's probably nearly impossible to accomplish such a change.  It would require a groundswell of popular support.  The Senators obviously won't want their positions nixed, the media thrives on having Senators serving as Political Celebrities to report on, special interests like having a couple of people to lobby to instead of needing to deal with the vast house of representatives, and this would require a constitutional amendment.  Still, I wonder why people who speak of small government never discuss this.

[Callie Del Noire]

Thing is.. popular opinion can be just as bad a method to rule as having 2 houses.

England has 2 houses.. most STABLE governments do.

It's a precarious balance and requires more than what the average 'John Q Public' american is willing to give.

That is: active and INFORMED participation.

[Kotah]

Two words.

International revolution.

[consortium11]

Thing is.. popular opinion can be just as bad a method to rule as having 2 houses.

England has 2 houses.. most STABLE governments do.

It's a precarious balance and requires more than what the average 'John Q Public' american is willing to give.

That is: active and INFORMED participation.

To be fair, our second house is virtually powerless and only really has the ability to stall legislation. Till recently (in political terms) a huge number of its members had their seats by virtue of being born and even now, with them removed, its often seen as cronyism and a backway to get unelected people into government. While there's rarely enough political will to truly change it (and deep debate on what a change should be) most parties (and the public) have a go at it every so often. The House of Lords shouldn't really be held up as a great example of a second chamber working well.

[Callie Del Noire]

To be fair, our second house is virtually powerless and only really has the ability to stall legislation. Till recently (in political terms) a huge number of its members had their seats by virtue of being born and even now, with them removed, its often seen as cronyism and a backway to get unelected people into government. While there's rarely enough political will to truly change it (and deep debate on what a change should be) most parties (and the public) have a go at it every so often. The House of Lords shouldn't really be held up as a great example of a second chamber working well.

True, but all RELATIVELY stable long lasting governments tend towards a 2 house style of representation. Keeps stupid popular AT THE MOMENT changes from taking hold.

Like. PROHIBITION. Which was easily one of the worse things the US government ever did. Put Organized Crime on the books easily.

Personally, if you want to do something to change things around. Put a term limit of the folks in congress (both houses).. Say 3 terms thne you have to sit out a term.

[Zakharra]

 

Solution?  Don't get rid of the filibuster, get rid of the Senate.  It's a poor analogy, but the bicameral nature of Congress is comparable to using two condoms while having a one night stand.  At the time of the Constitution, it was a brilliant compromise which helped establish our nation and made complete sense.  Today, things have changed.  Technology enables us to deal with a larger governing body, the disparity in population between smaller states and larger states has grown, and the trouble with having a 100 person 'legislative checkpoint' at the helm of the country is becoming very apparent as political corruption becomes so prevalent.

Practically speaking, it's probably nearly impossible to accomplish such a change.  It would require a groundswell of popular support.  The Senators obviously won't want their positions nixed, the media thrives on having Senators serving as Political Celebrities to report on, special interests like having a couple of people to lobby to instead of needing to deal with the vast house of representatives, and this would require a constitutional amendment.  Still, I wonder why people who speak of small government never discuss this.

A constitutional shift of that large a proportion is nearly impossible to do since our government is built around 2 legislative houses in that branch. There is a reason the Senate has 2 Senators per state. To prevent that larger population states from running the Legislative branch.  You'd have to convince the House and Senate, and 3/4 of the States to ratify this.

Personally, if you want to do something to change things around. Put a term limit of the folks in congress (both houses).. Say 3 terms thne you have to sit out a term.

  The Senate is every 6 years and the House every two. So to be fair between them, perhaps 2 terms for the Senate and 6 for the House? That way a person can be in each house 12 years. Giving them enough time to do something, but  eventually forces them out so you do not have lifetime Congressmen like you see in the Senate. People who have been there 30-40 years or more.

[Callie Del Noire]

Basically I put out because from the point of view of a STATE sometimes needs a person back in the senate.. not to mention it eliminates the 'lame duck' outlook of a final turm.

I didn't always agree with the late Senator Helms, BUT I do know he did what he thought was best for his state. (He turned down a more prestigous committee posting to state on the Senate Agricultural committee once.. because it was more important to his constituents)

I threw out an 'X number' of terms.. because I read somewhere (wish I coudl find it) that an incumbent has over a 90% chance of getting reelected. Not to limit the time in office, but to keep them working to represent their voters.. not take them for granted.

[Zakharra]

 True. A term limit would put good people out of the office, but it would limit how long bad people could be in too.

[Asuras]

The thing about the government is that it's designed to be slow. Bush had an approval rating of 90% after September 11; how many Democrats would have been elected if there had been election eight weeks later for every seat in Congress? What would the Republicans not have been able to do over the next two years (or more, if you reduce the frequency of elections?)

That is the reason to have checks like the filibuster, so the question is whether or not the filibuster is worth it. And I'm not so sure - we have checks like judicial review, which effectively places a higher threshold on certain kinds of legislation (namely, those which question constitutional rights), and others like life appointments on the Supreme Court and the Senate election cycle, which provide continuity between elections. The filibuster has become so widely used that now even legislation that doesn't require a constitutional amendment is almost being held to the same standard, which does seem pretty stifling.

On the other hand...Congress did pass significant health care reform last year, and sometimes I wonder if liberals remember just how recently they were the ones defending the filibuster against Bush and the Republicans. (on something, frankly, a lot less significant than health care reform...)

I think I'd be for reducing the number of votes required for cloture (say from 60 to 55) rather than abolishing the filibuster altogether.

[Callie Del Noire]

True. A term limit would put good people out of the office, but it would limit how long bad people could be in too.

Hence the suggestion of 'a time out term' rather than 'X terms and you're done'.

[Callie Del Noire]

The thing about the government is that it's designed to be slow. Bush had an approval rating of 90% after September 11; how many Democrats would have been elected if there had been election eight weeks later for every seat in Congress? What would the Republicans not have been able to do over the next two years (or more, if you reduce the frequency of elections?)

That is the reason to have checks like the filibuster, so the question is whether or not the filibuster is worth it. And I'm not so sure - we have checks like judicial review, which effectively places a higher threshold on certain kinds of legislation (namely, those which question constitutional rights), and others like life appointments on the Supreme Court and the Senate election cycle, which provide continuity between elections. The filibuster has become so widely used that now even legislation that doesn't require a constitutional amendment is almost being held to the same standard, which does seem pretty stifling.

On the other hand...Congress did pass significant health care reform last year, and sometimes I wonder if liberals remember just how recently they were the ones defending the filibuster against Bush and the Republicans. (on something, frankly, a lot less significant than health care reform...)

I think I'd be for reducing the number of votes required for cloture (say from 60 to 55) rather than abolishing the filibuster altogether.

Quite.. and as I recall it (the filibuster limit) used be lower still.

Personally I think a lot of the folks who are against it now.. (the Democrats) would drop the  demand to do it in if they were no longer in control (cough cough Nancy Pelosi cough cough)

(Sorry..she's always struck me as a bit of a two faced opportunist..the Democrats could do a LOT better)

[kylie]

... as I recall it (the filibuster limit) used be lower still.

I've pulled some sentences up to join preceding paragraphs and indented.  Personally, I just find zero indentation and strings of 2-line blurbs in a quote box, a pain to read.  Haven't changed anything else about the excerpt. 
http://topics.nytimes.com/top/reference/timestopics/subjects/f/filibusters_and_debate_curbs/index.html?scp=1-spot&sq=filibuster&st=cse

          Sarah A. Binder, a political scientist at George Washington University and co-author of a book on the filibuster, said that both the House and Senate began work in 1789 with a measure called a "previous question motion" that required only a simple majority to cut off debate. The House has kept such a rule to the present day.  But the Senate dropped it in an 1806 housecleaning without fully understanding the implications, she said.

          As early as 1841, a frustrated Senator Henry Clay of Kentucky threatened to try to change the debate rules when opponents tied up his banking bill with interminable talk. But the Senate finally adopted a formal means of ending a filibuster only in 1917, at the urging of President Woodrow Wilson.  Infuriated by the failure of Congress to act on war measures, Mr. Wilson fumed. "A little group of willful men," he declared, "representing no opinion but their own, have rendered the great government of the United States helpless and contemptible."

          With that push, the Senate decided that a two-thirds vote could cut off a filibuster, borrowing the French parliamentary term "clôture" for such a motion. In 1975, the Senate cut the required vote for cloture to three-fifths, or 60 senators, instead of 67.  At about the same time, the Senate created a two-track process that allows senators to block action on a piece of legislation merely by invoking the right to filibuster, without actually having to stand before the chamber and drone endlessly on. Meanwhile, the Senate can take up other business.

          The measure, intended to promote efficiency, inadvertently encouraged filibusters by making them painless, and made them a normal tool of political debate. In 1995, almost 44 percent of all major legislation considered by the Senate was delayed by a filibuster or the threat of one.

[kylie]

Personally I think a lot of the folks who are against it now.. (the Democrats) would drop the  demand to do it in if they were no longer in control (cough cough Nancy Pelosi cough cough)

That seems to be going with the approach that things are so polarized, it won't really matter who is in power?  As far as I understand, the existing historical evidence is more that the Republicans have used it much more than the Democrats did against them.  If one believes it's just the polarization of issues, then it will just keep escalating.  However, if one believes that, then it seems logical that the practical impact of many pieces of legislation may also get smaller and smaller.  Compromising with senators who represent the insurance companies gets you a watered down health policy.  Compromising with them more often gets you, deeper water.

... we have checks like judicial review, which effectively places a higher threshold on certain kinds of legislation (namely, those which question constitutional rights), and others like life appointments on the Supreme Court...

I'm a little uneasy about whether the Supreme Court is a really balanced check on the scope of legislation...  Some -- many would say, a scant majority -- were installed by Reagan-Bush, and have rather conservative track records.  Not to mention the federal judiciary ranks, where there has been much of the same.

[Callie Del Noire]

         That seems to be going with the approach that things are so polarized, it won't really matter who is in power?  As far as I understand, the existing historical evidence is more that the Republicans have used it much more than the Democrats did against them.  If one believes it's just the polarization of issues, then it will just keep escalating.  However, if one believes that, then it seems logical that the practical impact of many pieces of legislation may also get smaller and smaller.  Compromising with senators who represent the insurance companies gets you a watered down health policy.  Compromising with them more often gets you, deeper water.
          I'm a little uneasy about whether the Supreme Court is a really balanced check on the scope of legislation...  Some -- many would say, a scant majority -- were installed by Reagan-Bush, and have rather conservative track records.  Not to mention the federal judiciary ranks, where there has been much of the same.

Again I feel that it isn't the fault of the governorship that we are 'suffering' but from the governed (US, John Q Public) that are at fault.

It is not too hard to look up facts, participate and think for yourself. Too long we've let others tell us that we need to be safe or protected from something. (Case in point.. the Patriot Act).

I think Ben Franklin said something along the lines of 'A people who gives up a few liberties for security, merit neither'.

That means to me, you, me, and the guy down the street have to be informed participating citizens. That means VOTE and communicated to your elected officials.

Becuase let me tell you a little secret folks: Saints don't run for office. People who want something out of it do. Anyone who tells you they are in it for the 'people and only the people' are either a. delusional or b. LYING.

Cynical perhaps. Letting these same folks change the structure of a govenerment which has lasted for 200 years (not always well, or fairly, granted...but has lasted) means they have an idea how to get things more the way THEY like it.

You don't like policy. Talk to your officials. Participate in the process. VOTE.

Don't stand around wringing your hands about how 'unfair' things are.

Folks voted into office pay attention to TWO things. Numbers. Money.

Care to bet how many folks participate in the process? Depressingly few.

[kylie]

It is not too hard to look up facts, participate and think for yourself. Too long we've let others tell us that we need to be safe or protected from something. (Case in point.. the Patriot Act)....

I think Ben Franklin said something along the lines of 'A people who gives up a few liberties for security, merit neither'.

That means to me, you, me, and the guy down the street have to be informed participating citizens. That means VOTE and communicated to your elected officials.

Oh, I wouldn't dispute that people are too easily sold on "security."  However, unless you're talking to a few people in minority party states, it seems that voting only buys certain figures into the system.  Granted, campaign finance reform or the like might widen the range of candidates.  Perhaps a referendum for a more wholly democratic government -- possibly those term limits or something more radical.  I don't know.  I think these are rather separate topics.   

Letting these same folks change the structure of a govenerment which has lasted for 200 years (not always well, or fairly, granted...but has lasted) means they have an idea how to get things more the way THEY like it.

It sounds like you want a thread about something much broader than the filibuster.  Maybe a campaign for everyone to vote against incumbents over 10 years, to clear them all out??

Care to bet how many folks participate in the process? Depressingly few.

The fact remains that the existing process includes not only voting for a couple senators or campaigning...  As stands, it means expecting that numerous senators will be forced to dicker away what you just voted for with any miscellaneous senator -- who you often didn't vote for -- who threatens a filibuster.

[Jude]

There's several compromises between the abolishing the senate and keeping the bicameral status quo, such as establishing both houses based on population (and thus making senators harder to bribe), changing the senate so that a pool of representatives based on the population of the state in question with equal voting power controls each state's senatorial votes (keeps equal representation for all states but makes it harder to bribe senators), etc.  I think some change is necessary because the status quo is clearly not working.  Changing the filibuster alone will not resolve the fundamental problems with Congress.

I do agree that public is responsible for the failure of government, but I don't think that the public is going to change anytime soon.  We'd need a shift in cultural/societal values in order to change the populace so that they will actually value participating in the political process in a meaningful way.  I have to emphasize meaningful way, because even a lot of people who do vote aren't even being remotely intelligent about it.

If I recall (and I don't have the source of these statistics, so I have to admit this based entirely off of what I heard during congressional speeches and if anyone thinks this is unreasonable feel free to call me out on it), around every 12 minutes an American dies due to not having health insurance (and this is only the death toll that can be directly attributed to that via scientific studies).  That's roughly 5 Americans an hour and 120 a day.  Roughly 3000 people died on 9/11, the biggest terrorist attack in American History.  That means every month, more Americans die from the lack of health insurance than those who died during 9/11.

Yet people were willing to go to war in two middle eastern countries, sacrifice ridiculous amounts of money, as well as the lives of American servicemen to protect us against 9/11.  Americans are simply stupid when it comes to assessing and prioritizing threats.

[RubySlippers]

I have a better go back to having the STATES appoint the Senators, they seem to have lost most say in public affairs after moving this part of Congress over to the vote by the masses. Most of whome seem to be pretty stupid and uninformed on the issues. The Senate should be where the states get their say in public policy at the Federal level.

[Asuras]

I'm a little uneasy about whether the Supreme Court is a really balanced check on the scope of legislation...  Some -- many would say, a scant majority -- were installed by Reagan-Bush, and have rather conservative track records.

First, two of the six Reagan-Bush appointments developed reputations as moderates (O'Connor and Kennedy), while a third turned out to be a closet liberal (Souter). For instance, all three of them defended abortion rights and voted to end sodomy laws.

The SCOTUS is meant to be institutionally conservative; it's supposed to reflect the jurisprudence of the last 40 years or so rather than the popular fancies of just the last 2, 4, or 6. Until 2009, the Republicans had held the presidency for 28 of the preceding 40 years, and they were well represented on the Court - which, I think, is fine, I don't want every branch of government to fall into the hands of one party or one ideology in one, two, or three elections simply because of one fuck-up.

Not to mention the federal judiciary ranks, where there has been much of the same.

On issues of national significance, the federal judiciary is pretty powerless - it's bound to the opinions of the Supreme Court, and if for some reason their decisions contradict the Supreme Court, you can always appeal there, so it has limited relevance to the system of checks and balances.

There's several compromises between the abolishing the senate and keeping the bicameral status quo, such as establishing both houses based on population (and thus making senators harder to bribe), changing the senate so that a pool of representatives based on the population of the state in question with equal voting power controls each state's senatorial votes (keeps equal representation for all states but makes it harder to bribe senators), etc.  I think some change is necessary because the status quo is clearly not working.  Changing the filibuster alone will not resolve the fundamental problems with Congress.

• The more people that citizens have to vote for, the less they know about each of them, which means that it's easier for those officials to get away with mischief. When I lived in Texas, for instance, we elected everyone from the governor to each seat on the supreme court to comptroller to...pretty much down to dogcatcher. Result: no one cares about any of the races because no one has the inclination to learn about sixty different candidates for twenty offices.
  
• Most "bribery" comes in the form of campaign financing. The more elected officials there are, the cheaper the elections are, which means the cheaper it is to bribe. In theory, it probably costs as much to bribe a state's house delegation as it does to bribe the state's senate delegation.
  
• Because it costs less to bribe a house representative, it's harder to catch legally.

And I don't know if you're giving enough credit to the filibuster. If the Democrats only needed 55 votes, Lieberman and other moderates would have been irrelevant, and there would have been a public option in the senate bill. That's a huge difference.

I have a better go back to having the STATES appoint the Senators, they seem to have lost most say in public affairs after moving this part of Congress over to the vote by the masses. Most of whome seem to be pretty stupid and uninformed on the issues. The Senate should be where the states get their say in public policy at the Federal level.

IMHO, state legislators are some of the stupidest and most corrupt people on the planet, and the original purpose of directly electing senators was to make the process less corrupt. And states definitely get their say - ask West Virginia how they feel about Robert Byrd and the zillions he brings to his jurisdiction.

[RubySlippers]

Yes but a corrupt state appointee is OUR corrupt states appointee who would answer to the governor and state to keep his seat. Government by its nature is corrupt that is why its also evil and had to be chained by the US Constitution they just never bound it far enough.

[Asuras]

Yes but a corrupt state appointee is OUR corrupt states appointee who would answer to the governor and state to keep his seat. Government by its nature is corrupt that is why its also evil and had to be chained by the US Constitution they just never bound it far enough.

How is it not your state's senator if your state voted for him?

It seems less attached to the interests of the state if the governor appoints him - then he's the governor's crony. Look at what happened in Illinois when the governor had an opportunity to appoint a senator to succeed Obama.

[Callie Del Noire]

I fail to see how in my home state (NC), how a democrat appointee by the STATE democratic machine is any different from the slime that gets elected anyway.

NC is a democratic machine (run by the eastern carolina factions) and has been so FOREVER on the state level. We'd still have a bunch of oppourtunistic jerks in congress. (And I forsee the ones in office being there FOREVER now that the arch conservatives have the republican party reigns.. moderate republicans like myself are looked upon as.. deviants by the party officials..)

[kylie]

The SCOTUS is meant to be institutionally conservative; it's supposed to reflect the jurisprudence of the last 40 years or so rather than the popular fancies of just the last 2, 4, or 6. Until 2009, the Republicans had held the presidency for 28 of the preceding 40 years, and they were well represented on the Court - which, I think, is fine, I don't want every branch of government to fall into the hands of one party or one ideology in one, two, or three elections simply because of one fuck-up.

"Institutionally" conservative seems to equate historically into politically conservative, at least for the time period in question there.  A bit hard to follow...  It seems to me the Republicans being "well represented on the court" means that the Court has also fallen more into their hands.  It isn't as if the justices all retire very soon.

          Are you meaning to say, you want the Court politics to resemble election trends over the previous generation?  I suppose you could argue that..  Although technology, some issues, and certainly public usage of ideas can also shift faster than every 20-40 years.  It's kind of a gamble that research in legal history alone would make them capable of identifying when those changes are meaningful, or not.  If they are looking at those factors as important, then I'm not sure they can still be called institutionally conservative in this context.

On issues of national significance, the federal judiciary is pretty powerless - it's bound to the opinions of the Supreme Court, and if for some reason their decisions contradict the Supreme Court, you can always appeal there, so it has limited relevance to the system of checks and balances.

The Supreme Court is only a few people and they can only handle so many cases in a given time.  When they decide what not to take up, the rulings in those cases default to what the lower federal courts already decided.  If the federal courts had not been so conservatively packed in recent years, then it would take the Supreme Court a greater juggling act to actively undo liberal rulings on more of the cases they are asked to hear.

[HairyHeretic]

I fail to see how in my home state (NC), how a democrat appointee by the STATE democratic machine is any different from the slime that gets elected anyway.

NC is a democratic machine (run by the eastern carolina factions) and has been so FOREVER on the state level. We'd still have a bunch of oppourtunistic jerks in congress. (And I forsee the ones in office being there FOREVER now that the arch conservatives have the republican party reigns.. moderate republicans like myself are looked upon as.. deviants by the party officials..)

At the risk of dragging things briefly off topic, do you feel the current republican leadership is moving further to the right, and pandering to the more extreme supporters?

[Asuras]

"Institutionally" conservative seems to equate historically into politically conservative, at least for the time period in question there.  A bit hard to follow...  It seems to me the Republicans being "well represented on the court" means that the Court has also fallen more into their hands.  It isn't as if the justices all retire very soon.

Are you meaning to say, you want the Court politics to resemble election trends over the previous generation?  I suppose you could argue that..  Although technology, some issues, and certainly public usage of ideas can also shift faster than every 20-40 years.  It's kind of a gamble that research in legal history alone would make them capable of identifying when those changes are meaningful, or not.  If they are looking at those factors as important, then I'm not sure they can still be called institutionally conservative in this context.

That is the point. The idea is that if there's a sudden swing in political opinion (as there has been in the last three years) there is at least one part of government that thinks back longer than the most recent catastrophe.

The fact that they happen to be Republicans is just an indication of who has been in the White House for the past few decades. But again, note that three of the Bush-Reagan appointees were moderate-to-liberal - that's because it doesn't reflect just the presidency, it reflects a snapshot of the political conditions that prevailed when they were appointed, because not only did they have to be nominated by the president but also approved by the Senate.

The Supreme Court is only a few people and they can only handle so many cases in a given time.  When they decide what not to take up, the rulings in those cases default to what the lower federal courts already decided.  If the federal courts had not been so conservatively packed in recent years, then it would take the Supreme Court a greater juggling act to actively undo liberal rulings on more of the cases they are asked to hear.

There's no reason that a case has to be heard and decided on in the same term. If lower courts issue so many opinions in violation of precedent that the Supreme Court gets backlogged (which I find hard to believe), then it's the lower court's problem - the Supreme Court can issue certiorari on all of them, and until they decide on the case the lower court's judgment will be suspended.

Moreover, the Supreme Court routinely batches cases on similar topics together, so if a dozen judges separately (for instance) overturn Roe v. Wade, they can all be combined into a single case for the Supreme Court to review.

[kylie]

     Periodic Supreme Court detour...

The idea is that if there's a sudden swing in political opinion (as there has been in the last three years) there is at least one part of government that thinks back longer than the most recent catastrophe.

Whether they are conservative or liberal politically may influence things like whether they actually care to look at the larger history, or the particular circumstances of some cases at all.  It's ultimately a matter of interpretation and sense of social timing.  You mentioned abortion and sodomy -- at least, some big name cases.  If I'm not mistaken, the sodomy case also involved rather brazen invasion of a home.  That is something of a conflating issue. 

          To pick just one counter-example, while the court has allowed Guantanamo prisoners to sue the US, it has refused to take up a torture case "without comment"...  Obama's reticence on the subject of Bush administration roundups aside, I don't see this as a case of the court being especially liberal. http://www.huffingtonpost.com/2009/12/14/supreme-court-rejects-gua_n_391176.html

          In the end, whether you consider those judges conservative or liberal has a something do with your politics.  However, there are also researchers who hold that the Court has been packed with conservatives.  For example:

http://partners.is.asu.edu/~george/vacancy/justices.html

          For the 2006-07 term, 30 cases are identified and Stevens is listed first, having voted in the liberal direction on all but one of those cases. Alito voted in a liberal direction only 2 times, marking him as the most conservative justice for 2006-07, though Thomas, Scalia, and Roberts were right there with three liberal votes out of the 30 cases. The result is an ordering of the justices from most liberal to least liberal (most conservative), Stevens and Ginsburg being the most liberal, with little to distinguish the conservative bloc of four.

          This table [ http://partners.is.asu.edu/~george/vacancy/table_guttman_2006.html ] reveals much about the new dominance of the Court by a conservative majority made up Chief Justice Roberts along with Justices Scalia, Thomas, Alito, and Kennedy. For those thirty cases, nearly three-fourth (22) were decided in a direction that could be defined as more conservative than liberal. While somewhat less cohesive than the most conservative bloc of four, Justices Stevens, Ginsburg, Souter, and Breyer hold down a more liberal position on most of these issues and occasionally muster some victories when Justice Kennedy swings over to their position. Exactly two-thirds of these 30 cases were decided by five-to-four votes and Justice Kennedy was on the winning side in all twenty of them. Indeed, Kennedy was on the winning side in 29 of the 30 cases, some 97%. The Chief Justice was the next most winning member with 83%.

          Last year's 2007-08 term [ http://partners.is.asu.edu/~george/vacancy/table_guttman_2007.html ] produced modest changes. The Guttman-scaled table of liberal/conservative cases reveals a set of cases almost evenly split in outcome, 14 liberal outcomes and 16 conservative outcomes. This is reflected by Justice Kennedy's score of 50%. One should not interpret these results as reflecting any change in the Court. The conservative group did not somehow become more liberal. These changes reflect the issues brought by the specific set of cases, for the most part providing fewer clear-cut liberal-conservative issues than in 2006-07. Ginsburg remains the most liberal justice, but this time joined by Souter rather than Stevens, who had some interesting alliances with the conservative bloc in Irizarry v. US, Medellin v. Texas, and Crawford v. Marion County Election Board. Thomas came in as the most conservative member of the Court.

http://partners.is.asu.edu/~george/vacancy/index.html

Outcomes on the Court will not change much with Sotomayor's replacement of Souter. The most critical appointment this decade was President Bush's replacement of Justice O'Connor with Samuel Alito, a solid conservative supplanting the pivotal Sandra O'Connor, insuring more frequent conservative outcomes in 5-4 decisions. The pivotal position relinquished by O'Connor passed to Anthony Kennedy, who joined the conservative bloc of Roberts, Scalia, Thomas, and Alito more often than not (15 out of 20 occasions in 2006-07 in which a 5-4 vote divided the conservative bloc from the more liberal bloc of Stevens, Ginsburg, Souter, and Breyer. Click on the Justices link if you wish to see voting data from the Court's 2007-08 term.

Following that, there is a claim that Democrats may have an opportunity to recoup influence.  However, that scenario requires them to both replace both aging liberal judges and some of the conservative ones.  Which brings us back toward the potential impact of the filibuster.  In any case, this contradicts any notion that the Court has become liberal due to Reagan-Bush nominations.

There's no reason that a case has to be heard and decided on in the same term. If lower courts issue so many opinions in violation of precedent that the Supreme Court gets backlogged (which I find hard to believe), then it's the lower court's problem - the Supreme Court can issue certiorari on all of them, and until they decide on the case the lower court's judgment will be suspended.

I suppose they could.  If the situation were that messy, however, I suspect we would also be rushing on to threads about whether to shorten the tenure of Supreme Court justices.  It's not a formal mechanism, but at some point, if the Court misgauges public opinion or the impact of a specific situation too dramatically...  Then more people may demand more accountability from the Court.  At the least, there would be an impact on the next set of nomination hearings.  It could be more.

         Also, not all litigants will have the resources, patience and circumstances to reach the Supreme Court.  That is, if they believe their chances are any better with the ideological mix at the top than in federal Circuits.  Some hot-button, pressing issues rarely come to the Supreme Court because parties are concerned that the Court might shoot them down and set a "higher" precedent for another generation.  (For example, there is some fear that an unsuccessful push on gay marriage now could block anyone else from trying for some years.)  So again, if the federal courts are packed, then the real ability of the Supreme Court per se to respond to legislation is rather limited.  I still think today, both levels of court are packed in the same direction.  It's still a problem, if one relies primarily on the courts for balance.

[RubySlippers]

I fail to see how in my home state (NC), how a democrat appointee by the STATE democratic machine is any different from the slime that gets elected anyway.

NC is a democratic machine (run by the eastern carolina factions) and has been so FOREVER on the state level. We'd still have a bunch of oppourtunistic jerks in congress. (And I forsee the ones in office being there FOREVER now that the arch conservatives have the republican party reigns.. moderate republicans like myself are looked upon as.. deviants by the party officials..)

Its called "checks and balances" that is this gives states a say in Federal policy with the elected House of Representatives being closer to the people acting for them. There is a reason declaring war and making treaties is Senatorial it gives each state votes in such policy. And they can choose to recall Senators that fail to do their jobs when their terms are up. Take the health care debate States rightly feel ignored since they don't appoint half of Congress they are ignored.

[Asuras]

Whether they are conservative or liberal politically may influence things like whether they actually care to look at the larger history, or the particular circumstances of some cases at all.

I'll state my point more clearly:

The Supreme Court is intended to reflect the average political viewpoint of the previous few decades, in order to provide a strong counterbalance against the elected branches of government which are more prone to extremism.

I am not contending that the justices lack ideology, nor that they aren't more conservative than liberal as a whole, and certainly not that they're unbiased, and certainly not that the Reagan-Bush appointments made the court more liberal. I am arguing that the court represents a good average of political ideology over the last few decades - which I think your data supports.

Also, not all litigants will have the resources, patience and circumstances to reach the Supreme Court.

On issues of serious, national significance, you can find representation with the ACLU, Southern Poverty Law, NAACP, or any of the dozens of groups that rain amicus briefs on the high court. That doesn't apply to all litigants, but in the context of "checks and balances" I think it applies.

That is, if they believe their chances are any better with the ideological mix at the top than in federal Circuits.  Some hot-button, pressing issues rarely come to the Supreme Court because parties are concerned that the Court might shoot them down and set a "higher" precedent for another generation.  (For example, there is some fear that an unsuccessful push on gay marriage now could block anyone else from trying for some years.)  So again, if the federal courts are packed, then the real ability of the Supreme Court per se to respond to legislation is rather limited.

I don't understand how the conclusion follows. If you think that the Supreme Court is packed against you (or for you), then the lower courts matter even less.

[kylie]

The Supreme Court is intended to reflect the average political viewpoint of the previous few decades, in order to provide a strong counterbalance against the elected branches of government which are more prone to extremism.

Where is that written?  My understanding is that the Supreme Court was supposed to protect the ideals of the Constitution, or its own best understanding of how they are to be interpreted.  There may be a less formal convention that they are not expected to outpace social change dramatically, but I don't know of any order that requires them to do precisely the average of only the last few decades.  If the last few decades were always the bar, then they should have shot down the Emancipation Proclamation off the bat.

I am arguing that the court represents a good average of political ideology over the last few decades - which I think your data supports.

That could be true, but I don't see that it is required to do so.  Also, neither the overall trend nor the justification seems to explain when or how the Court might do something relatively new -- and they do from time to time.  Whether it be refusing to discuss torture of prisoners, or supporting pro-civil rights agendas. 

On issues of serious, national significance, you can find representation with the ACLU, Southern Poverty Law, NAACP, or any of the dozens of groups that rain amicus briefs on the high court. That doesn't apply to all litigants, but in the context of "checks and balances" I think it applies.

First, it can be a weakness of government that such groups don't have the resources of official standing on their side in the first place -- compared to say, Homeland Security.  What's serious here depends upon point of view.  By claiming that the system will take up everything "serious," you seem to insinuate that everything it doesn't must not be all that serious. 

          How about a Hawaii teacher who was jailed for almost a year and lost his job because Immigrations (now under Homeland Security's weighty arm) told the media he was being investigated for pedophilia...  They arrested him solely on a Customs charge, and used his association with a young adult immigrant to push the pedophilia charge -- which they brought wildly implausible evidence for and eventually dropped.  Investigators and prosecutors blasted him for being gay and attempted to turn that into an excuse for the pedophilia claim in court.  Lambda Legal would not defend him because although he is bi, it not an issue about gay marriage.  ACLU would speak only for the immigrant.  There was no one to help him elevate the case.  Was it nationally "important"?  To any other gays smeared with one thing while accused of another, yes.  It was certainly a civil rights case with national consequences. 
http://archives.starbulletin.com/2006/05/27/news/story06.html
     (Loren states most of it is misrepresented info, but you can see the public pedo claim.)

I don't understand how the conclusion follows. If you think that the Supreme Court is packed against you (or for you), then the lower courts matter even less.

The lower courts matter because some cases do not have time, resources, or the political climate to get to the Supreme Court at all.   If the initial premise is that the Supreme Court is the great balancer, then again:  That assumes all cases of importance get to them in a timely fashion.  However, some cases simply stop in federal court due to those variables.  Others decide whether to advance by comparing the positions of the Federal Circuits they have already faced and the expected leaning of the Supreme.  It all counts.

[Callie Del Noire]

Well it's a moot point.

The Democrats have lost that 'filadbuster proof' senate.

And I fear that politics-wise we'll just have to agree to disagree Kylie.

[kylie]

And I fear that politics-wise we'll just have to agree to disagree Kylie.

Not completely sure which part you'd like to disagree with... 

          By itself, of course, it's a hard sentence to argue with   ;)

[Callie Del Noire]

You seem to think that the Senate is irredeemably broken and should be abolished. And that the Filabuster is the tactics of the 'losing side'.

I agree they are in need of reform but not total removal.

[kylie]

You seem to think that the Senate is irredeemably broken and should be abolished.

Ummm, where did I say that? 

          The only place I imagine you mistakenly getting that, is perhaps...  Taking my response to the claim that the Supreme Court is always a reliable balancing factor (even without the filibuster), substituting Senate for Supreme Court, and tossing in something I never said about "abolish."  Haven't been there.   Haven't said that.

And that the Filabuster is the tactics of the 'losing side'.

And this time, you're disagreeing?

Personally I think a lot of the folks who are against it now.. (the Democrats) would drop the  demand to do it in if they were no longer in control (cough cough Nancy Pelosi cough cough)

[Callie Del Noire]

I disagree in that it's a totally BAD thing.

And I think that's wrong. (Do I agree with it's use by the republicians of late? No. But then Compromise is a lost word on both sides these days).

I also think getting rid of the court (or any of the fixtures of government) out right is a bad move.

[kylie]

I disagree in that it's a totally BAD thing.   And I think that's wrong. (Do I agree with it's use by the republicians of late? No. But then Compromise is a lost word on both sides these days).

I also think getting rid of the court (or any of the fixtures of government) out right is a bad move.

I'm getting the impression that first, you've concluded that my mind was all made up from the get-go.  Second, you've represented things I would see as modifications as "abolishing" whole parts of the government.  Or if not honestly intending to say that, then you've resorted to some shotgun hyperbole.

          Actually, I hadn't made up my mind completely.  I'm moved by Collins' argument that (at least she implies) giving precedence to state borders and district gerrymandering, regardless of population produces an archaic and unreasonable policy process.  I'm not so sure about Asuras' claim (if I'm pointing the right way on author or intent -- we've gotten long on the details) that the Supreme Court will catch the ball either way.  I can foresee situations where Democrats and others would miss the filibuster on another day.  I can also foresee situations where bad compromises are made, if any.  Policy may be made such that tomorrow isn't so bright anyway.  That kind of denies the whole notion of electing a progressive platform to begin with.  I may lean toward the last couple sentences more than the others, but I'd be interested in hearing more interesting (and other) arguments either way.  Believe it or not, sometimes these threads get opened because people actually want to stir up a few different ideas about whatever is involved in the issue.  Of course, people can simply reply "bad" and insult and "wrong" if they must, but that doesn't add or analyze very much.

I also think getting rid of the court (or any of the fixtures of government) out right is a bad move.

Well, I don't know what to make of using the term "fixture" here.  It's a too-conveniently ambiguous word that could imply anything from founder intent to most anything that [insert favorite leader], just yesterday, declared must be kept.  Whether or not the filibuster -- certainly in its current form -- were to be regarded as "fixed" in place, the fact remains that it's an awfully recent situation. 

          Various rules come and go.  Just a few years ago, the Justice Department was defending torture itself.   As you have pointed out elsewhere, the government is still overlooking or closeting some maneuvers that may well have been treasonous.  Some people would insist the notions of executive privilege or secrecy that are cited in doing so, are based in institutions which are necessary "fixtures" of government.   This is just saying it's a powerful tool and some people have gotten used to it.  No matter how, nor with what outcomes in the present.

[kylie]

          By the way...  For those who may be thinking it's all moot since the Republicans would filibuster any change in the Senate...  It may be quite feasible to modify or do away with the filibuster.  That is precisely because neither the number of votes involved in breaking a filibuster (which have been changed repeatedly -- see previous posts) nor the filibuster itself were part of the original Constitutional design.  Of course that's no decisive argument that they should or should not be changed...  However, the point that it's feasible under government rules may lend some more obvious relevance to the discussion.

http://www.nytimes.com/2009/12/21/opinion/21krugman.html

Remember, the Constitution sets up the Senate as a body with majority — not supermajority — rule. So the rule of 60 can be changed.  A Congressional Research Service report from 2005, when a Republican majority was threatening to abolish the filibuster so it could push through Bush judicial nominees, suggests several ways this could happen — for example, through a majority vote changing Senate rules on the first day of a new session.

[Asuras]

Where is that written?  My understanding is that the Supreme Court was supposed to protect the ideals of the Constitution, or its own best understanding of how they are to be interpreted.

That would be nice, but in practice the room for interpretation is often so broad that it constitutes political decision-making.

There may be a less formal convention that they are not expected to outpace social change dramatically, but I don't know of any order that requires them to do precisely the average of only the last few decades.

It isn't an "order," but it is the practical reality.

If the last few decades were always the bar, then they should have shot down the Emancipation Proclamation off the bat.

I don't know if it was ever challenged before the Supreme Court, but if it was, the main issue wouldn't have been about slavery but about the President's power to confiscate the property of people that the US was at war with. It would have been beyond the powers of the court (i.e., no one would have taken them seriously) if they had said that there was some special right in the constitution to holding slaves even by rebels.

That could be true, but I don't see that it is required to do so. Also, neither the overall trend nor the justification seems to explain when or how the Court might do something relatively new -- and they do from time to time.  Whether it be refusing to discuss torture of prisoners, or supporting pro-civil rights agendas.

Generally, when they do something "new" they're doing something that the people that appointed them would have wanted them to do. There may not have been the political opportunity to do it when they were appointed but it is a pretty clear reflection of the prevailing ideology of the institutions that appointed the court - it's not incidental that Brown v. Board and Roe v. Wade happened after years of liberal appointments.

And sometimes if they do something "new" it's because the issue has only just appeared before the court - there weren't many prisoners in Guantanamo until 2001.

Lambda Legal would not defend him because although he is bi, it not an issue about gay marriage.  ACLU would speak only for the immigrant.  There was no one to help him elevate the case.  Was it nationally "important"?  To any other gays smeared with one thing while accused of another, yes.  It was certainly a civil rights case with national consequences.

You're saying that gays around the country were seriously concerned about this case, but at the same time they wouldn't bother to get their legal defense groups involved? That seems like strong evidence that they weren't seriously concerned.

[kylie]

         Asuras, I'm kinda wishing we could have a talk without me feeling like your politics is close to a wholesale celebration of fait accomplis.  To me, the point of any involvement in politics is not to align oneself with what "must" happen anyway.  I'm really not ultimately concerned with exactly when or whether something is to be called the "right side of history" by everyone or even a majority.  I don't believe you can always convince everyone, nor always in a timely fashion. 

         I do think that often enough, it's worth trying to convince a few more people.  If that doesn't make the difference -- or perhaps, when the system is actually chopped up by borders or procedures that actually overrule the majority opinion anyway (think, the Senate):  Then, in either case, I would not assume a logic that implies whatever the system is more likely to decide must be the best thing to argue for.  If no one argues because everyone assumes it's decided, then that is a self-fulfilling prophecy.  Which in turn suggests that what you were really hoping for to begin with was more the status quo in terms of power distribution. 

          Now, of course you may insinuate that it's necessary to follow the system (any system) or the trends (no matter what parties think) if you want.  I won't subscribe to the notion that outcomes were inevitable in the way that philosophy suggests.  I might say it was due to problematic choices by some people (and I'll look for which ones under which conditions).  Or, I might say it was bad education/leadership by a few with too many means.  Then, I'll look at the means and how they were gained.  Thus, what about the filibuster, which seems to be a glaring (though certainly not the only) roadblock to Democrats doing what they were elected to do.

[kylie]

That would be nice, but in practice the room for interpretation is often so broad that it constitutes political decision-making.

There is no such thing as practice without some interpretation leading it.  Everyone who swears to uphold the Constitution is responsible to decide for themselves what in the world it should mean, here and now.

I don't know if [the abolition of slavery] was ever challenged before the Supreme Court, but if it was, the main issue wouldn't have been about slavery but about the President's power to confiscate the property of people that the US was at war with. It would have been beyond the powers of the court (i.e., no one would have taken them seriously) if they had said that there was some special right in the constitution to holding slaves even by rebels.

Well, then there are situations such as the Court ruling in favor of the Cherokee in 1831 and against their removal from Georgia.  Andrew Jackson pushed them out anyway.  I don't know offhand how many people agreed with the Court or with Jackson (and in Georgia, nationally, etc.).  Obama doesn't agree with the Court on campaign finance, either.  So I'm inclined to say, one might better take up Supreme Court tenure as another possible reform -- but in another thread.

Lambda Legal would not defend him because although he is bi, it not an issue about gay marriage.  ACLU would speak only for the immigrant.  There was no one to help him elevate the case.  Was it nationally "important"?  To any other gays smeared with one thing while accused of another, yes.  It was certainly a civil rights case with national consequences.

You're saying that gays around the country were seriously concerned about this case, but at the same time they wouldn't bother to get their legal defense groups involved? That seems like strong evidence that they weren't seriously concerned.

I said (see the quote), for other gays in similar circumstances.  I also said that Lambda was not interested in the case partly because they did not feel it could link directly to a positive issue of law regarding gay marriage per se.  They actually said, until we win on gay marriage, your case is up to Congress.  Which should bring us back toward the filibuster itself.

[Trieste]

Yes, stay on topic, please. The last three posts (and possibly more) have been a different issue entirely.