Paul Gowder Horwitz has a very interesting set of comments at PrawfsBlawg: The Filibuster, the Constitution Outside the Courts, and the Press's Failure. A taste:
What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees. Nor, for reasons I hope I have demonstrated, is it enough to stop there? What constitutional conclusions has he reached on all these other questions? The failure of the press to push for answers on these questions is really disappointing — inexcusable, in fact. It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way.
What accounts for this silence? I don't think it is simply that this level of detail is reserved for law geeks. I think it says something about how we think about the Constitution as applied outside the courts. The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party. Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter.
But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote. At least it is not supposed to be. It decides a constitutional question — and one that, at that, would likely be insulated from judicial review. The Vice President, along with the members of the Senate, takes an oath to “support this Constitution,” and we ought to assume he takes it seriously. That means that, finally, only his views will matter — not those of Senator Frist, or his lawyers, or the public, or even the President. Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences. Is the same any less true of any other government officer faced with the duty of interpreting the Constitution? In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable.
I hate to correct you for egotistical purposes, but I’m Paul Horwitz, not Paul Gowder (although Paul Gowder has posted some very fine comments on the blog). I’d just hate for my mother not to spot my handiwork if she’s surfing the Net.
Cheers (and thanks for the link to the Prawfsblawg cite),
Paul Horwitz
I should have stuck to my resolution: No posts 9-5 while grading. Sorry!
Good post!
It is one of the most despicable things about Bush and his Administration….the complete lack of any principle except supporting him and the Party- no matter what.
What is it about this asshole that so many seem willing to sacrifice the most basic values of our country – a free press, an independent judiciary, freedom of assembly (the abuse of freedom that follows Bush wherever he travels ought to outrage Americans)- to worship him?
It seems taken for granted that Cheney will rule as he will, but no one seems bothered by it.
Bush has so trampled on the notion of truth that it’s almost as if we just accept that everyone will lie and behave in an unethical manner.
Bush, Cheney and the whole crowd are phonies, hypocrites, and liars.
Pure and simple.
I wonder if this is less an instance of the lack of any principle than it is an example of the dynamics of power in the political arena? Is it really surprising that the Republicans should be interested in consolidating and expanding their power? I suppose that in these heady times for the Republicans they are not very concerned about how their actions of late may come back to bite them in the ass down the road.
What seems more surprising (your second point) is how so many who do not stand to gain from the Bush administration in the way of power or money, and in fact get hurt in this respect, worship him anyway. If you are not already familiar with these books, you may want to check them out: Suburban Warriors: The Origins of the New American Right by Lisa McGirr and Whats the Matter with Kansas: How Conservatives Won the Heart of America by Thomas Frank. Also, if Kevin Phillips was right about the 32 to 36 year duration of political cycles when he wrote The Emerging Republican Majority and pegged its start date with the election of Nixon in 1968, why in the hell dont the Republicans seem to be at the end of their time in the sun?
There’s a line from a new song out (“Road to Joy” by the band Bright Eyes) that goes, “So when youre asked to fight a war thats over nothing, Its best to join the side thats gonna win.”
We shall see.
How can Cheney be violating his oath to protect the Constitution by employing the nuclear option when the filibuster isn’t part of the Constitution in the first place? Sure, he’s a lying, short-sighted, power-grubbing partisan. But that’s not illegal.