The iron bun

The US Senate and the European Parliament likened to the ostrich that Sir Thomas Browne tried to feed an iron bun.

A bad week in democratic politics. By the virtual filibuster procedure conceded by Harry Reid, the Republican minority in the US Senate killed the minimal Manchin-Toomey bill ever so slightly tightening background checks on gun sales. It almost adopted Cornyn’s amendment imposing interstate recognition for concealed carry, a step toward the gun nut dystopia of arms everywhere, all the time.

American politicians are crazy, I thought, European ones are just stupid, I thought. Until the European Parliament voted down the Commission’s proposal to tighten carbon emissions allowances and revive the cap-and-trade market, now at a zero lower bound that makes the scheme a nonsense.

At least the American public, if it’s interested, can find out instantly who crashed the plane. I can’t find a proper analysis of the EP vote. Here is the raw voting list by parties (doc, page 23, vote on item 10, amendment 20 to reject the proposal). List of political groups, to explain the acronyms. Debate transcript - not yet translated, so you get the multilingual flavour of the plenary, if not a full understanding, unless you read Greek and Finnish.

ostrich2In an engagingly eccentric BBC programme on 17th century sensibilities, they picked Sir Thomas Browne, provincial doctor, polymath, writer of prose as rich and flavourful as Malmsey, and enthusiastic but unstructured Baconian experimenter. His best-selling(!) compendium of received errors, Pseudodoxia Epidemica: or, Enquiries into very many received Tenents and commonly presumed Truths (1646), has a chapter attacking the belief that ostriches eat iron.

The ground of this conceit is its swallowing down fragments of Iron, which men observing, by a froward illation, have therefore conceived it digesteth them; which is an inference not to be admitted, as being a fallacy of the consequent, that is, concluding a position of the consequent, from the position of the antecedent. For many things are swallowed by animals, rather for condiment, gust or medicament, then any substantial nutriment. So Poultrey, and especially the Turkey, do of themselves take down stones; and we have found at one time in the gizzard of a Turkey no less then seven hundred.

Browne finally encountered a live ostrich. According to Leslie Stephens [microupdate, see comments]:

Sir Thomas takes a keen interest in the fate of an unlucky ‘oestridge’ which found its way to London in 1681, and was doomed to illustrate some of the vulgar errors. The poor bird was induced to swallow a piece of iron weighing two and a-half ounces, which, strange to say, it could not digest. It soon afterwards died ‘of a soden,’ either from the severity of the weather or from the peculiar nature of its diet.

pain au chocolat The BBC presenter Adam Nicolson claims, relying on Browne’s copious notebooks, that he first tried to tempt the ostrich by concealing the iron in a pastry, like a haematic pain au chocolat. (Browne’s style is catching.) The ostrich ate the bun, but spurned the filling.

By what illation do we get our ostrich politicians to swallow their iron bun?

Are Filibusters of Executive Branch Nominees Constitutional?

President Obama’s announcement today making three nominations to the National Labor Relations Board should remind us that the GOP is the party of permanent constitutional crisis.  It has been quite clear from the beginning of the Obama Administration that the Republicans simply have no interest in allowing the NLRB to function.  That shouldn’t be much if a surprise: it’s what you believe if you are a plutocrat.  Besides, it’s nothing new: Republicans have explicitly stated that they will not allow any nominee to head the Consumer Financial Protection Bureau to come to a vote unless the statute is changed.

But it seems to me that this attitude has a constitutional dimension.

Article II of the Constitution not only vests “executive power” in the President, but it commands him to “take care that the laws be faithfully executed.”  The problem is that the President cannot do this if the Senate will not confirm any of his nominations.  And make no mistake: that’s the Republican goal here.  It does not want the CFPB or the NLRB to operate; it does not want the law to be faithfully executed.  But the Senate has the constitutional power to reject nominations.  So the clauses conflict — a quite common feature of the founding charter.  Does the Constitution contradict itself?  Very well, then it contradicts itself.  It is not large, but it contains multitudes.

Is there anything that the law can do about this?  On the most basic level, I think that the answer is no.  When it comes to the CFPB, the Republicans might be opening themselves up to criticism for violating the Constitution, but if anything would be a political question, it would be this.  I cannot imagine any court trying to review the intentions of Senators about why they vote against nominees: that would be the paradigmatic political question.

Nevertheless, I do believe that it makes the filibuster of executive branch nominations constitutionally suspect.  First, we should not read the Constitution to magnify opportunities for one branch to deny the other its core powers.  Second, we should not read the Constitution to enhance interbranch conflict: there is enough of it built into the document already.  Third, we should read the Constitution to enhance public accountability — one of the framers’ central goals — and the filibuster of executive branch nominations undermines it: the law isn’t being faithfully executed, and everyone is pointing fingers at everyone else.  Finally, the Constitution should not permit the empowerment of “false conflicts” between branches, and the filibustering of an executive branch nomination is not really an interbranch conflict at all: it represents a conflict between the President and a minority of one of the houses of Congress.
Continue reading “Are Filibusters of Executive Branch Nominees Constitutional?”

Not Nice Work If You Can Get It: Good Luck to Senator Mikulski

The continually growing presence of women in Congress — now for the first time breaking into triple digits — is getting deserved attention. Another historic first of the 113th Congress: Senator Barbara Mikulski has become the first woman to Chair the Senate Appropriations Committee. How she got the job however reflects the unfortunate dysfunction of recent Congresses.

The legendary Robert Byrd of my home state of West Virginia knew the ins and outs of Congress better perhaps than any other 20th century Senator. When he was pressured by his party to step down as Majority Leader in 1989, he understood immediately that Appropriations Chair was the chip for which to trade. Some insiders at the time said the switch made him more rather than less powerful.

Some years later, I remember well Arlen Specter describing with evident delight the amount of money he would control as Appropriations Chair as being enough to fill the huge room in which we were standing with bills with Salmon P. Chase’s picture on them (That’s $10,000 for those of you scoring at home, even though they only printed a few hundred of them I got the point).

In contrast, when the Chair came open this year, no one seemed to want it. Patrick Leahy was first in line and said no thanks. Tom Harkin could have had it too, but wasn’t interested. Incredible as it would have seemed to the Robert Byrd of 1989, chairing Judiciary or HELP gives a Senator more power these days than chairing appropriations for the simple reason that the Congress just doesn’t pass spending bills much any more.

We have all accommodated to the most minimal of performance standards: A few federal departments get their appropriations but the rest are jammed year after year into a sloppy continuing resolution that is very much the product of a chamber-wide scrum rather than the deliberations of the appropriations committee. I doubt Mikulski can change this; I wish her luck. It would make her job more fun and powerful if she could, but of course the more important beneficiary would be, well, pretty much everyone who relies on government to do much of anything in a competent and responsive fashion.

Letter to DiFi on filibuster reform

Just sent:

The Hon. Diane Feinstein
331 Hart Senate Office Bldg.
Washington, D.C. 20510
December 3, 2012

Dear Sen. Feinstein:

As a Democrat who has had the pleasure of voting for you three times
so far, I was very troubled to read that you were wavering on the
question of filibuster reform
. I hope that your views have been

Given the appalling behavior of Sen. McConnell since the election of
President Obama, and the indication that he intends to continue to
obstruct the public business at every turn, Sen. Reid is fully
justified in acting to rein in the power of an irresponsible minority.
Indeed, I would prefer a more radical step, with successive cloture
votes requiring diminishing super-majorities so that the third vote
would require only 51 votes.

I can imagine no more important issue confronting the Senate this
year. Were there ever to be a primary election in which one of the
candidates supported filibuster reform while the other opposed it,
that would almost certainly be the decisive issue with respect to my
vote, my voice, and my financial support.

Very truly yours,

Go thou, and do likewise, and encourage your friends to do the same. I’m prepared to bet that ten thousand physical letters (emails count for much less) would get her respectful attention. Voters mostly don’t care about procedural issues: let’s make it clear that some high-information, high-political-activity voters care terribly about this one.

The billionaire vs. free-riding multimillionaires

Love this account of a pissing match between Warren Buffett and Mitch McConnell.  The Senator from Kentucky has been urging the Sage of Omaha to make voluntary contributions to the Treasury if he felt he was undertaxed.  Buffett has now responded that he’ll match any such contributions made by Republican Senators.

This dialogue makes in a different form an argument offered by that raving lefty Milton Friedman.  Voluntary contributions to reduce poverty (or do any of the other things we rely on the government to do) are insufficient, because everyone would be willing to pay his/her share only if s/he could be sure that everyone else would be willing to pay his/her share.  Otherwise, no dice.

Doubtless McConnell will ignore Buffett’s challenge and continue his nonsensical bluster about Buffett’s freedom to pay extra if he feels “guilty” about his low tax rate.  But the point isn’t, of course, how Buffett feels, or even what he does—it’s what everyone else does.  And if McConnell and his buddies don’t donate to the Treasury, then they are poster children for the free-rider problem—thereby proving Buffett right: philanthropy is not sufficient and taxation is necessary.

H/T the indispensable Rick Cohen at The Nonprofit Quarterly.

Can President Romney Repeal Health Care Reform Via Reconciliation?

He certainly claims that he can.  In the GOP President debate last night, Mitt Romney said that because the Affordable Care Act was enacted via budget reconciliation, which cannot be filibustered, it can be repealed that way.

Now, in typical Romney fashion, this is out-and-out false, because of course the Affordable Care Act was not passed via reconciliation.  It required 60 votes, because the Senate parliamentarian ruled that several of its aspects — “community rating” for health plans, the antidiscrimination provisions, allowing 18-to-26 year-olds to remain on their parents’ health plans — were not related to budget matters.  Thus, the ACA was passed with 60 votes, and then various budgetary cleanup provisions were passed with a simple majority through reconciliation.

This is why Kevin Drum, among others, is confident that repealing the Affordable Care Act will not be so simple.  And he might be right.

But I would be willing to bet that if Romney does get elected, and the Senate turns Republican, the ACA will be repealed by reconciliation.

The current Republican Party does not believe in rules.  It will subvert rules to get what it wants, and have little compunction in doing so.  So this is what will happen:

1)  The Republicans will put a complete repeal of the ACA into their reconciliation bill.

2)  Senate Democrats will challenge it.

3)  The Senate parliamentarian will rule in their favor. AND THEN:

4) Either Vice President Rubio (or Haley or whomever) will simply ignore the recommendation and rule in the GOP’s favor; OR

5)  Majority Leader McConnell will have his caucus overturn the parliamentarian’s ruling; OR

6)  McConnell will fire the parliametarian (as Trent Lott did a few years ago on a similar issue) and find one who will pliably rule the way the GOP wants.  Maybe Hans van Spakovsky is available.

And that will be that.  Republicans may not respect rules, but they do respect power — particularly when they have it.  And all those Democrats who tut-tutted that one couldn’t pass health care reform through reconciliation, and that you need 60 votes, and that’s why we have to turn over the process to “Steaming Heap of Senator” Kent Conrad, will sputter about how that’s not supposed to happen.  But that will be the new reality.  And while the Democrats are studying that reality—judiciously, as they will—the Republicans will act again, creating other new realities, which the Democrats can study too, and that’s how things will sort out.

Senator McCaskill opposes UI benefit extension

Missouri’s economically-stressed African-American voters put Claire McCaskill over the top in a close 2006 race. She repays her most loyal constituents and her party by opposing UI extension.

(Cross-posted on the Century Foundations’s Taking Note).

David Goldstein reported this last year,

Black voters were pivotal to McCaskill’s Senate victory in 2006 over former Republican Sen. Jim Talent. She won 91 percent of African-American votes.

More importantly, the black share of the overall voter turnout in Missouri rose to 13 percent in 2006, up from 8 percent two years before…

That was an important victory, in no small part because Missouri’s African-American community needs some serious help. Indeed, the African-American jobless rate in greater Saint Louis was ranked third-worse among the nation’s top fifty metropolitan areas.

So it’s especially disappointing to hear (via Daniel Strauss at the Hill) that Senator McCaskill has come out against the extension of UI benefits. Her stance will hurt the American economy. It will hurt the Democratic Party. Most important, it will hurt her own core supporters, many of whom must wonder why they turned out in force to help her win a close election five years ago.

Many conservative and moderate Democrats are trying to court swing voters by neglecting the human pain being experienced among poor people and among working-class Americans who are enduring economic catastrophe. I believe this is bad politics. It is also disgraceful. This stance will only mar Senator McCaskill’s own mixed political legacy.

Judicial Filibusters: Who Started It? And Why Does It Matter?

 The Democrats did.  And it doesn’t matter: they were right to do so.  Here’s why.

The GOP filibuster of Goodwin Liu (who has since withdrawn his candidacy) has led to all sort of recriminations.  “You violated the “Gang of 14” agreement!”  “Oh yeah?  You filibustered Miguel Estrada.”  And on and on.  Dahlia Lithwick suggests that it’s pointless to even figure this out.  I disagree.

Using advanced research techniques unavailable to full-time reporters, I went to the library and consulted The Federal Appointments Process by Professor Michael J. Gerhardt of the University of North Carolina Law School.  Gerhardt’s book is something of the standard work in the field.  He explains that when it comes to blocking Presidential appointments of circuit and district court judges, the key event was the Republican takeover of Congress in 1995.  As I mentioned a few days ago, this was a typical Gingrichist move: break the informal institutions of American governance.  Obviously, it wasn’t Gingrich himself: he was in the House.  But the “Republican Revolution” dragged Senators along with it, especially because so many of them had been member of the minority GOP House caucus.  Thus, as Gerhardt observes:

President Clinton’s federal district and appellate court nominees confronted historic delays.  For instance, 1999 was a historic year for the Clinton presidency not only because of the president’s acquittal in his impeachment trial but also because by mid-year the Clinton Administration had only two judges confirmed — the lowest number ever confirmed midway through a nonelection year.  Moreover, the statistics for some other years are striking.  For instance, the percentage of President Clinton’s judicial nominations confirmed in 1997 — 47 percent — is significantly lower than the percentage of judicial confirmations for any president (except for Clinton’s own record the previous year) over the past four decades.  In 1998, the percentage of judicial nominees confirmed climbed well back into the respectable range at 79.5 percent.  Though 101 judges were confirmed in 1998, the numbers of confirmed judicial nominees in 1997 and 1999 were each lower than the number of President Reagan’s judicial nominees confirmed in 1998 (41) and the number of President Bush’s judicial nominees confirmed in 1992 (66), both of which were election years. (167-8).

This pattern followed the Republicans’ changing of the “Blue Slip” rules in 1995, in order to make it much easier to block Clinton judicial nominations.  (They then changed the rules back in 2001 when Bush became President).  Kevin Drum explained this in a classic 2003 post.  Remember — this behavior represented a complete change from the traditional informal understandings about what happens when the President is of a different party than the Senate majority.  Democrats came nowhere close to doing this when they were in the same position with Nixon, Reagan, or Bush I.

Was all this because of intransigence on Clinton’s part?  Not at all.  After 1994, explains Gerhardt, with

a Republican majority in the Senate, the Clinton Administration became more seriously committed to avoiding controversial judicial appointments and preserving precious political coinage for other important legislative initiatives.  The Clinton Administration consulted widely on appointments with people outside the administration, including senators, representatives, state and party officials, and civil rights leaders and other interest group leaders.  By frequently floating various names before the media or the Senate in the hope of determining which had the likeliest change to win confirmation or make the largest number of people happy, the Clinton Administration effectively transformed consultation into a preview of or substitute for the confirmation process. (122).

Essentially, the Clinton Administration was practically begging the GOP to take someone — anyone — for the federal bench.  And the Republicans turned it down, thinking that they would run out the clock and hope to get unified control in 2000 (which it did thanks to the Supreme Court).

So if you are the Democratic caucus in 2001, this is what you see: 1) the Republicans completely changed the rules from 1995-2000; 2) this left dozens of vacancies that would not have been there had the old rules applied; and 3) are now in a position to fill them from a President who is in the White House only because of a Supreme Court coup.  Anyone who wouldn’t filibuster in those circumstances is a sucker.  Yes — the Democrats were the ones who started the greater use of judicial filibusters.  And that was completely reasonable given the situation that they were in.

But there is one crucial caveat to all of this.  Why did the Republicans change the rules so drastically in 1995?  Was it petty partisanship?  Not at all.  It was grand partisanship.  From its very inception, Movement Conservatism aimed to transform the federal judiciary.  It was an article of faith that the Warren Court had perverted the US Constitution.  This is why the Federalist Society became so influential so quickly.  It was why Reagan nominated Robert Bork, who had expressed skepticism about Brown v. Board of Education.  And it was why the Democrats blocked Bork, to their everlasting credit, saving the country from a genuine reactionary.

We can see this even today.  Consider Justice Scalia’s hissy fit dissent in Brown v. Plata, the case decided this week concerning the appalling conditions in California’s prisons.  Much of it is devoted to arguing that the remedy in this case — the so-called “structural injunction” — is illegitimate and probably unconstitutional.  Structural injunctions are essentially a series of ongoing orders to public institutions to change their practices.  They are far-reaching, difficult, complex, and sometimes counterproductive.  And they are often necessary.  If courts really got rid of structural injunctions, then both Brown v. Board of Education (“Brown II”, concerning the remedy) and Reynolds v. Sims (the “one-man, one’vote” decision) would never have occurred.  And that is what Movement Conservatism wants.  The Court’s conservatives are still trying to get rid of desegregation remedies.

The Republican judicial campaign in the 1990’s and today is essentially designed to take the courts back before the 1950’s.  That is its program.  When the Democrats saw this, they filibustered.  I believe that they were right to do so then, and they are right to complain about it now.  But you cannot divorce substance from procedure.  Do you believe that the federal courts should attempt to force other institutions to protect civil rights?  Democrats say yes, Republicans say no (with the important and not irrelevant exceptions of guns and private property rights).  That’s the argument.  It’s a real argument.  But that is the ground on which it should be waged.

Judicial Filibusters: What Now?

Senate Republicans have filibustered Goodwin Liu’s nomination, and it’s silly to think that this won’t happen with virtually every Obama nominee, especially with a McConnell-led caucus.  For example, Caitlin Halligan, Obama’s first nominee to the DC Circuit, was opposed by every single Republican on the Senate Judiciary Committee, and if you think that doesn’t mean that they will filibuster her, I’ve got a bridge in Brooklyn to sell to you.  Once the Democrats are in the same position, they will do the same, as they did during George W. Bush’s presidency.  The “deal” arranged by the Gang of 14, which militated strongly toward the Republicans, said that a nominee would be filibustered only under “extraordinary circumstances,” which in GOP-ese, means “when there is someone we don’t like.”  (Previous Democratic filibusters were not undertaken under the Gang of 14 deal, but I hardly expect Democratic behavior to be different).

So what do we do now?  It’s getting to the point where there is a real crisis in terms of filling positions.  Here’s a modest proposal, which might actually have some support on both sides of the aisle.  The trick is finding language for a deal sufficiently hard-edged that it can be written into the Senate rules, sufficiently non-partisan to attract support from Democrats and Republicans, and sufficiently protective of individual Senators’ power that the members of the World’s Most Dysfunctional Deliberative Body can agree to it.

Here goes:

In the federal appellate courts, judges within a circuit are generally assigned by state.  In the Second Circuit, New York gets some, Connecticut gets some, Vermont gets some, although of course New York gets more because of population.  My proposal for a rules amendment would be:

Cloture for judicial nominees will require a simple majority of all Senators in the chamber if the nominee is approved by both Senators from the nominee’s state of service.

If a nominee for the 9th Circuit will sit in California, and both California Senators approve, no filibuster is in order.  If a nominee for the 5th Circuit will sit in Mississippi and both Mississippi Senators approve, no filibuster is in order.  Yes, under this scenario, Liu would have been confirmed, but Haley Barbour’s dog would have been confirmed for Mississippi.

This framework would have the benefit of moving at least some judges through the pipeline, and alleviating the vacancy crisis.  It would be attractive to Senators; maybe it would even enhance their power in some circumstances.  As things stand now, things are just going to spiral upwards, and the federal judiciary will essentially turn into an Article I body, with recess-appointed judges doing temporary work.


1.  Small one: no solution for the DC and Federal Circuits.  True, but it’s something.

2.  Would the inability to filibuster under some circumstances promote more filibustering under others?  Perhaps, but with this Senate Republican Caucus, it’s hard to see it increasing that much more.

3.  Sharply divergent courts depending upon the region.  I don’t want to think about what the 5th and 11th Circuits would look like by the time this took effect.  On the other hand, they are pretty awful already.  And so are regional disparities.

I’m not fully convinced of it; I offer it for discussion purposes.  Two more things to keep in mind:

First, Obama has been just unconscionably derelict in nominating people.  I don’t expect that the Republicans would have let any more nominees through, and that may be why no one in the administration is doing it.  The Republicans are busily filibustering FTC Commissioners, and Deputy Assistant Secretaries of things.  But at the end of the day, you’ve got to make the nominations. 

Second, maybe it’s all moot because as soon as the Republicans have the Presidency and the Senate, they will just go nuclear and have done with it.  Perhaps.  But they didn’t do it the last time, probably because they couldn’t have gotten the votes.  The next Senate Republican majority will be the most conservative since the Gilded Age, but it’s still hard to convince a Senator to give up his power.

Two New Options for Goodwin Liu

To the surprise of exactly no one, Senate Republicans will filibuster Goodwin Liu’s nomination to the 9th Circuit Court of Appeals.  As I argued yesterday, this really shouldn’t matter if the administration’s eventual goal is to appoint Liu to the United States Supreme Court: many of the greatest justices had no or virtually no judicial experience before coming onto the high bench.  But if the administration really believe that Liu has to have some judicial experience beforehand, there are a couple of other options:

1)  Give Liu a recess appointment to the Ninth Circuit.  This will last until the end of the current Congress.  With more than a year and a half of experience on the federal bench, Liu will have more judicial training than John Marshall Harlan, Clarence Thomas, or Elana Kagan.  Temporary Article III judgeships are going to be more and more common as long as Senate Republicans have decided to make the Senate dysfunctional.  (It’s bad for the judiciary as an institution, but the GOP doesn’t care about institutions.).

2)  Prevail upon California Governor Jerry Brown to appoint Liu to the open seat on the California Supreme Court.  It says something not-so-great about the legal profession and legal academia that state supreme courts are not regarded as having the same or greater prestige than intermediate federal appellate courts.  For the most part, state supreme courts have control over their dockets, unlike the federal circuit courts, and they are the last word in their own jurisdictions.  State supreme court justices elevated to the US Supremes have a pretty good track record — Souter, Brennan, and Holmes immediately come to mind.  Why would Brown do this?  Why not?  Liu would be a highly effective judge.  And besides, given California’s ongoing fiscal crisis, it would be really good to have friends in Washington high places who owe you a favor.