by Matt Barr

Briefly on Mr. Kaus and the candy ass "I call filibuster!" rule

Mickey Kaus, who still doesn't have permalinks, so scroll down to "kf filibusters itself!" (but hurry!), says

the Senate's advise-and-consent votes are votes that don't involve the House in any way. That means one of the basic majority-obstructing mechanisms the Constitution provides for legislation--the need to get two quite different legislatures to agree--simply isn't there when it comes to voting on judges. Senator Frist could reasonably say that, because judicial appointments are treated differently from laws in the Constitution, we need extra anti-majoritarian protections like the filibuster when we consider judges.

Of course, Frist has said exactly the opposite--that we need fewer anti-majoritarian protections when it comes to judges. That's why I think he's wrong.

Kausian emphasis in original. Just a brief point: The fact that the framers of the Constitution did not subject the Senate's advise-and-consent role to a further check by the House does not lead to the conclusion that it must have meant for some other check -- say, filibuster -- to be in place. It actually means, if anything (and to be clear, I think this whole line of inquiry is a non-starter), that the framers intended less check on a majority in the Senate attempting to commit advice and consent than it intended for legislation -- which is what Sen. Frist seems to be arguing.

I've been patiently waiting, by the way, for someone to point out (maybe they have) that this centuries-old filibuster tradition that the Democrats want to preserve in the name of fidelity to our grand constitutional scheme until very recently required the filibuster-er to actually filibuster -- that is, "debate" on the floor and not yield time. This has meant Sen. Reid in 2003 "related over several hours the history of Searchlight, Nev., and told how desert rabbits avoid cholla, ocotillo and beaver tails, but the critters do eat other types of cacti" [link] and Sen. Thurmond give us "a 24-hour, 18-minute stem-winder delivered during a filibuster against the Civil Rights Act of 1957" a few years before Sen. Byrd took the floor for more than 14 hours to stymie the 1964 Civil Rights Act [link]. Easy to dig in to protect the filibuster when you don't have to do any actual work.

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