The Constitutional Option

Y’know how those rascals in Washington are all twisted around whether or not judicial nominees should be rendered filibuster-proof in a move called "the nuclear option" in an attempt to make it sound more extreme than it is?

I’m all for that.

The use of filibusters to thwart judicial nominees is a new thing in American politics, and I see nothing wrong with using the tactic to prevent it from happening.

In fact, I’m rather cool towards filibusters as a whole: The idea is not in the U.S. Constitution. In fact, the Senate didn’t originally have filibusters. The institution was created when the Senate accidentally deleted a measure from its rules that allowed the closing of debates that had gotten out of hand. It was years before folks got around to applying the loophole to thwart the passage of legislation supported by the majority and, by extension, the will of the people.

Consequently, I’m quite open to the idea of getting rid of the filibuster altogether. U.S. law already has lots of safeguards built into it to protect the interests of groups in the minority (the Bill of Rights being a notable example), and the use of cheap parliamentary tactics to further thwart the will of the majority doesn’t seem quite cricket to me. If there need to be more measures to protect the interests of those whose legislators are not a majority, let straightforward measures be enacted to protect them. Let’s not rely on unworthy phony debates that aren’t real debates at all but simply obstructionism (and which, these days, don’t even literally go on all night).

Thing is: While it may (under current rules) take 60 votes to end a filibuster, the filibuster rule itself can be scrapped by only a simple majority.

The Constitution provides only a single method – the constitutional amendment process – to entrench a rule against repeal by a majority. If Democrats were correct that rules can be insulated from majority amendment, a bare majority in each House could have passed the Bill of Rights and made it our fundamental law by declaring that only unanimous votes by both Houses could pass legislation violating its principles. The Democratic view also conflicts with a principle known since before the framing of the Constitution that one legislature cannot bind subsequent legislatures.

The . . . constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option – the route contemplated by our founding document.

That’s a quotation from

THIS INTERESTING STORY ON "THE CONSTITUTIONAL OPTION."

Or you can go into

FASCINATING MIND-NUMBING DETAIL ON THE HISTORY OF THE FILIBUSTER AND THE CONSTITUTIONAL OPTION. (WARNING! Evil file format [.pdf]!)

Author: Jimmy Akin

Jimmy was born in Texas, grew up nominally Protestant, but at age 20 experienced a profound conversion to Christ. Planning on becoming a Protestant seminary professor, he started an intensive study of the Bible. But the more he immersed himself in Scripture the more he found to support the Catholic faith, and in 1992 he entered the Catholic Church. His conversion story, "A Triumph and a Tragedy," is published in Surprised by Truth. Besides being an author, Jimmy is the Senior Apologist at Catholic Answers, a contributing editor to Catholic Answers Magazine, and a weekly guest on "Catholic Answers Live."

6 thoughts on “The Constitutional Option”

  1. The filibuster should not go away by pieces, but entirely, along with the practice of allowing home state senators to functionally veto nominations of people from their state.

  2. …and which, these days, don’t even literally go on all night
    Politicians these days are the laziest, most pampered, cowardly bums around. They don’t even have the guts anymore to force a real filibuster for more than a few hours, might interfere with their dinner plans or something.
    I’m for a real filibuster (i.e. one that lasts for a few weeks even), but since there’s no chance of seeing that, I’m all for the constitutional recorded majority vote advise and consent by the democratically elected branch of government known as the senate option.

  3. The Nuclear Option

    The Democrats are abusing the filibuster to block judges who would show some restraint. Since the judiciary – particularly the Supreme Court – has no effective checks and balances on its power, the nuclear option is necessary.

  4. Fillibustering nominees to office is a clear violation of the spirit of the Constitution but not the letter. The remedy is recess appointments. Maybe the President can find a core of retired lawyers who think like Glendon, Arkes and George to serve on SCOTUS in interim appointments until the Senate gets around to confirming his nominees. That would get the Democrats moving on the President’s nominees.

  5. By this same logic, we should go back to the ideal held in this country before Andrew Jackson that the President can only use the veto power against obviously unconstitutional legislation.
    After all we don’t want the use of cheap parliamentary tactics to further thwart the will of the majority. But each their own.
    At the time, some people called Andrew Jackson a dictator for his use of the veto. But tradition makes things Hallow that would otherwise be silly.
    Gerrymandering, filibusters, and vetoes all distort the “ideal” democratic process. Everyone opposes their use done by the other side, but few seem to complain when it benefits them.
    The purpose of the Senate is to make change slow. The Founders did not want wholesale change in the result of one election, but wanted time to curb passions. Conservatives who curse this function now probably thanked the heavens for it during the New Deal and the Great Society.

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