Wednesday, December 10, 2014

Restore the Filibuster (with Conditions)

US Senator Henry Clay (center) filibusters

Senate Republicans are debating whether to reinstate the filibuster to the minority caucus over non-SCOTUS federal appointments when the GOP senators take the majority next year.

One commentator, Hewell Hewitt, who was likely smacking his head figuratively, commented:

The Senate GOP will debate restoring the filibuster today, a move which, if agreed to, will firmly hang a "kick me" sign on their collective rear-end.

He demanded a GOP caucus of mature strength and, with unified, bold moves to demarcate not clear distinctions between the two parties, with a ready willingness to work with the President, provided that the chief executive abide by their lead.

However, would reinstating the recently undone filibuster rules turn out as a craven act of political compromise? By itself, yes. With strings attached, not at all.

The Republican majority could also invest this new power not just to spotlight judicial abuse, but enact long-term policies which would cripple the illiberal, progressive judicial activism which has poisoned the federal court system into hyperpartisan, extralegal policy making.

Matt Vespa reported on the inside baseball of this issue:

Republicans on the other side of the debate, however, warn that if the GOP adopts the change, it could lead to further cuts to minority rights in the Senate going forward.

“Any diminution of the right to filibuster a nominee means someday there’s a greater chance of getting rid of the legislative filibusters. Once you go down that road the next step is to get rid of the filibuster for legislation,” said one Senate GOP aide.

There is a great deal of concern about the role of minority rights in the US Senate. Never designed as a populist body, the upper chamber was meant to cool of the partisan nature of the House of Representatives, and force deliberation on all legislative matters. Even Alexander Hamilton, himself a hot-head of brazen political ambition, reconciled New York and later Virginia voters to accept the Constitution because of the deliberate nature of the upper body.

Mr. Smith Filibusters in Washington
Instead of reviewing the reintroduction of the filibuster from a stark "yes or no" perspective, Republican lawmakers can present conditions which will brandish their conservative credentials, solidify their base, demonstrate them as willing participants in full-involvement republicanism, and also expose the biting demagoguery of the now Democratic minority. Potential reforms attached to reinstatement of the filibuster would also engage the Republican Party as the mature political body ready to attack the deeper problem: the rank politicization of the federal judiciary.

1. Provide a slate of conservative judicial nominees to fill in key vacancies in the federal court system. "We will let you block future nominees, but these candidates must go in or out with an up or down vote." The minority can grumble, vote No, but the GOP's preferred candidates will receive their appointments.

2. Establish clear filibuster parameters for future blocking efforts, with safeguards to prevent another majority from tampering with them. Left and right, grassroots and Establishment, despite the phone practice of US Senators’ phoning in their efforts to block bills and nominees without standing in the chamber. Other underground maneuvers like "blue papers" permit home-state senators to block nominees without consideration. A filibuster must be a physical act, a la Rand Paul via Obama's nominee for CIA Director. With this reform, possible Presidential candidates like Ted Cruz as well as Paul can highlight their conservative credentials and  hone their celebrity for the 2016 Republican nomination.

US Senator Rand Paul filibuster (March, 2013)

3. Tie limits on the authority of federal judges to reject or accept federal lawsuits, depending on their merit. Some constitutional scholars have argued that the United States Supreme Court should not possess the power of judicial review in the first place, while other lawmakers have contended that the Supreme Court should not be the final arbiter on deeply scientific as well as moral questions, such as the origins of life, and terms of viability for an unborn child.

4. Offer a constitutional amendment to remove life-time appointments of federal judges. Perhaps those judicial officers should be subject to vote by the majority of legislators within their respective federal districts or circuits. This reform would bolster federalism, a strong suit for Republicans and their party, which now dominated seventy-percent of the states' legislatures and governorships.

5. Introduce the repeal of the Seventeenth Amendment, which has required US Senators to posture for the popular vote every six years, when they should be answering to the state legislatures in the first place. Granted, CA's junior US Senator Barbara Boxer would rethink retirement, since she would not need (to amass) a massive warchest, but the posturing of heady legislators looking for an easy reelection path would diminish.

These proposed rider-reforms would  restore filibuster, but strengthen the checks and balances originally conceived by the Framers, enshrining liberty, expanding individual and state sovereignty, while diminishing the influence of the federal government in our daily lives.

The US Senate Republican Majority may restore the filibuster with any or all of these conditions. If the Democratic minority says "No", they will be the anti-liberty, anti-state sovereignty obstructionists. And Republicans will win the acclimation and support of an otherwise frustrated conservative base.

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