Filibusters

Greg Sargent claims that Sen. Reid didn't allow a filibuster of the Mukasey confirmation vote because the Dem leadership was convinced that there were enough votes to break a filibuster:

"They would have gotten 60," [a] leadership source says, adding: "Some on the Democratic side honestly fundamentally don't believe in filibustering cabinet secretaries. We are on the cusp of a new administration, and we think it will be a Democratic one. Filibustering here would have set a bad precedent."

Of course, this argument will ring hollow to some. Good behavior by Dems now is hardly likely to produce the same on the part of Republicans; indeed, they've already been filibustering like nothing else.

Notice that Sargent just assumes that there's no difference between filibustering a nominee and filibustering legislation, but I'm not sure that's true. Now, I know that I said otherwise two years ago, but I'm no stranger to eating crow (one might paraphrase John Maynard Keynes to observe that when our understanding of the facts change, so must our minds to remain consistent with them), and I now think I was wrong to say then that there's no difference between the Senate's consideration of what is called "executive business" and legislative business.

To be sure, I continue to believe that "[t]he Constitution makes no such differentiation," but "when we dive in murkier waters, where the [Constitution's] command is less plain, we should be guided by the ropes of the unenunciated structures and principles that undergird and are presupposed by the Constitution, and by the lights of our forebears: by tradition, and by precedent...." In the absence of contradictory or even clear text, tradition can supply a source of authority. When we look at the historical record, the Senate has maintained a division (albeit not exactly a Chinese wall) between legislative and executive business - tracking the contours of the exercise of its functions under Articles I and II respectively - since at very least May 25th, 1789, when the concept of a distinct session for "executive business" first appears in the Senate journal. Thus did the Senate recieve, consider, and ultimately "advise and consent to their being appointed to office" President Washington's first nominees, 1 Annals of Cong. 65-6 (August 18th-20th, 1789), a form followed on receipt of President Washington's first executive branch nominees, id. at 80-1 (September 11th-12th, 1789), his first judicial appointees, id. at 88-9, 93 (September 24th and 26th, 1789), and it would seem ever since. Moreover, I think there's a clear conceptual distinction between work on legislation and the consideration of Presidential nominees (I'd also suggest that one can readily distinguish between nominees for administration posts vs. nominees for posts that will outlive an administration, in the most acute case, Article III judges). In short, there are bases on which to rest a distinction between filibustering legislative business, as the Senate GOP is today doing, and filbustering nominees by a possilbe future Democratic President.

I ought to note in closing that this revision of my thinking has limits: I still believe that the Constitution's command is plain where the so-called nuclear option is concerned. Art. I, §5, Cl. 2 very clearly gives the Senate the power to adopt supermajority rules, and that clear text would trump even a background supposition of the framers that simple majorities would govern, which was in any event not the case (see McGinnis & Rappaport, The Rights of Legislators and the Wrongs of Interpretation: a Further Defense of the Constitutionality of Legislative Supermajority Rules, 47 Duke L.J. 327 (1997)). For that reason, I continue to believe that the nuclear option would constitute a usurpation of power without any grounding in the Constitution. I also think that it would be unwise as a normative matter to remove the filibuster for nominees, because the distinction between legislative and executive business is not so clear-cut that I would be confident in its surviving a partisan fracas. Just because we can rationally distinguish between the filibuster of executive business vs. the filibuster of legislative business doesn't mean that such a distinction will be made (or will survive) when it becomes inexpedient to the majority party.

Related:
The Nuclear Option, redux

Post facto:
My man Mitch (6/4/08)
Ten things that aren't changing (11/5/08)