March 01, 2003

What a Waste It Is... Not to Have a Mind

George Will flunks the Turing test in his comments on judicial nominations. As Dan Quayle used to say, "What a waste it is to lose one's mind. Or not to have a mind is being very wasteful. How true that is."


Steve's No Direction Home Page: George Will, Then and Now. 4/27/93


Lloyd Cutler is a liberal critic of Senate Rule XXII that requires 60 votes to curtail debate by imposing cloture. He is a distinguished Washington lawyer, seasoned by public service (he was President Carter's counsel) that unfortunately did not inoculate him against the temptations of institutional tinkering. The tinkering he favors would facilitate the essence of the liberal agenda - more uninhibited government. For example, a decade ago he recommended various reforms to undermine what he called an "anomaly" and what the Framers considered the essence of the constitutional system - the separation of powers.
...

Cutler's argument for the unconstitutionality of Rule XXII is:

"The text of the Constitution plainly implies that each house must take all its decisions by majority vote, except in the five expressly enumerated cases where the text itself requires a two-thirds vote: the Senate's advice and consent to a treaty, the Senate's guilty verdict on impeachments, either house expelling a member, both houses overriding a presidential veto and both houses proposing a constitutional amendment."

But the Constitution "implies" no such thing. Cutler's semantic sleight-of-hand is in the words "must take all its decisions." The Constitution provides only that, other than in the five cases, a simple majority vote shall decide the disposition by each house of business that has consequences beyond each house, such as passing legislation or confirming executive or judicial nominees. Procedural rules internal to each house are another matter. And the generation that wrote and ratified the Constitution - the generation whose actions are considered particularly illuminating concerning the meaning and spirit of the Constitution - set the Senate's permissive tradition regarding extended debate. There was something very like a filibuster in the First Congress.

Today

The president, preoccupied with regime change elsewhere, will occupy a substantially diminished presidency unless he defeats the current attempt to alter the constitutional regime here. If at least 41 Senate Democrats succeed in blocking a vote on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the Constitution effectively will be amended.

If Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.

That was easy. Next?


[Eschaton]

George Will is vast, he contains multitudes.

Posted by DeLong at March 1, 2003 02:40 PM | TrackBack

Comments

In the early 1990s, George Will was a big advocate of term limits for members of Congress. Wrote a whole book about it actually. But since 1994, he's been real quiet about it. Never mentions it, even though he once described term limits as a magic elixir that would cure all the ills of Washington. I wonder why?

Posted by: FMguru on March 2, 2003 12:38 AM

He did write a good book describing the different aspects of baseball (Managing, Pitching, Batting, Fielding); Men at Work, 1990.

Posted by: harv on March 2, 2003 06:58 AM

He did write a good book describing the different aspects of baseball (Managing, Pitching, Batting, Fielding); Men at Work, 1990.

Posted by: harv on March 2, 2003 06:59 AM

There are wonderful advantages, carrer, financial and social, to being an advocate in the guise of an analyst. George Will is pleased as pie and well rewarded in taking up Republican positions. Where is the problem? Should we expect love of Democrats or real analysis from such? Baseball? There are a whole lot better writers on baseball.

Posted by: jd on March 2, 2003 08:13 AM

I'm not sure if Will is best classed as "an advocate in the guise of an analyst;" I always thought him a sycophant in the guise of an intellectual. The conservative cohort of midcentury scholars had as companion a band of intellectualists whose devotion to poorly-understood economic and political theories was only exceeded by their wardrobe of bow ties.

Nonetheless, it's not really in character for Will to accuse the Democrats of plotting a "coup against the Constitution." I wonder if he's being driven to new extremes by the popularity of Peter Porcupines like Ann Coulter and the execrable Michael Savage.

Posted by: Watchful Babbler on March 2, 2003 09:49 AM

>4/27/93 : The Constitution provides only that, other than in the five cases, a simple majority vote shall decide the disposition by each house of business that has consequences beyond each house, such as passing legislation or confirming executive or judicial nominees.

So how is he being inconsistent regarding majority voting for judicial nominees?

Posted by: Bucky Dent on March 2, 2003 09:55 AM

Watchful -

Bluntly, George Will is a political hack who can always be counted on to shill for the right. The intent is always to out Coulter Coulter and other fellow hacks. Love you, Georgie.

Posted by: jd on March 2, 2003 10:04 AM

In the first post, Will says that flibusters and extended debate are very much in the spirit of the constitution, in the second he says that a filibuster is an attempt to alter the constitution. Why the two different interpretations? In case number 1, the filubuster could be used against Clinton nominees, in case number 2, it could be used against Bush nominees.

Do you see it now Bucky?
(P.S. I am not holding my breath)

Posted by: achilles on March 2, 2003 10:53 AM

>I am not holding my breath

Will seems to specifically exclude judicial appointments from requiring a super majority in the first post, making it consistent with his view in the second post.

Here's ther relevant passage from the Clinton-era text: "The Constitution provides only that, other than in the five cases, a simple majority vote shall decide the disposition by each house of business that has consequences beyond each house, such as passing legislation or confirming executive or judicial nominees. Procedural rules internal to each house are another matter."

Insofar as judicial appointments are concerned, he appears to be consistent.

You may exhale now.

Posted by: Bucky Dent on March 2, 2003 12:05 PM

"You see, 1 + 1 *does* equal 3 if you adjust for the....."

Posted by: Jason McCullough on March 2, 2003 12:43 PM

Actually, on further inspection it looks like you're right; Will carves out an exception for himself.

"The Constitution provides only that, other than in the five cases, a simple majority vote shall decide the disposition by each house of business that has consequences beyond each house, such as passing legislation or confirming executive or judicial nominees."

The problem is that I think he completely makes up this this "consequences beyond each house" rule. For one thing, virtually everything that occurs in the legislatures has "consequences beyond"; more importantly, I don't see anything like this in the text of the constitution at all. The only relevant areas I can find:

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

Posted by: Jason McCullough on March 2, 2003 01:06 PM

>Will carves out an exception

Yep. And he did it years ago, in a different political environment.

Posted by: Bucky Dent on March 2, 2003 02:28 PM

"Procedural rules internal to each house are another matter. And the generation that wrote and ratified the Constitution - the generation whose actions are considered particularly illuminating concerning the meaning and spirit of the Constitution - set the Senate's permissive tradition regarding extended debate. There was something very like a filibuster in the First Congress."

The filibuster is a part of Senate procedure. And in the first case, Will is stating that filibusters were part of procedure from the very beginning. He then turns around in the second post and interprets the use of a filibuster as a change in the constitution requiring judicial nominees get 60 yes votes. That is wrong.

Estrada will still be confirmed if 50+ senators vote yes. However he can't get to that stage unless the filibuster is broken. If Will is interpreting this as a change in the econstitution he's wrong because by his own account this rule has been in existence since the first Congress.

I don't agree with the filibuster but it is consistent with Senate rules.

Posted by: achilles on March 2, 2003 04:39 PM

I take no position on the constitutionality of any of this. I just note that Will, during Clinton's first term, stated clearly that *in his opinion* judicial appointments should only be held to a 50%+1 standard.

Posted by: Bucky Dent on March 2, 2003 04:59 PM

Will's interpretation is not only legally incoherent but historically implausible. There is no Constitutionally-mandated, plenary "president[ial] power to shape the judiciary;" indeed, the original instruction to the Constitutional Committee of Detail was to reserve to the Senate alone the power to nominate Article III judges. Our current system, wherein the Executive proposes and the Legislature disposes, is the result of a subcommittee that sought to find a middle road between the convention's instructions and the view of Madison's clique, who wanted to get rid of the Senate's role entirely.

Of course, if Will still insists that the Dems are violating the Constitution, he might do well to look at his own party of choice. For years, the Republicans have blocked the nomination of judges to the D.C. circuit, claiming that the circuit has too many slots for judges. They have not, however, reduced in statute the number of positions. Under Will's rather expansive (if not insupportable) reading of the Constitution, the GOP has violated the Article II, Section 2 powers of the President much more blatantly than the Democrats.

Posted by: Watchful Babbler on March 2, 2003 04:59 PM

What the Watchful Babbler says is true. Unless anyone can come up with a Will column condemning the Republicans refusal to vote on Clinton nomineees then Will has a partisan doublestandard.

Posted by: Dan on March 2, 2003 07:51 PM

Wow, Bucky, you take quoting out of context to a new height. Your selective quote is actually Will quoting Cutler specifically to argue [i]against[/i] it. The inconsistency is that he is now arguing for, what you have so kindly pointed out, a statement he specifically argued against 10 years ago.

Posted by: Adam on March 2, 2003 09:06 PM

Bucky: Will wasn't saying (in 1993) that confirming judicial appointments were a special case where filibusters were *not* welcome; he was saying that even though the Constitution made a simple majorities the standard -- in appointments *AND* in "legislation", remember! -- that fact did *not* invalidate the principle of filibusters.

In other words, if Will had really been saying "judicial appointments are a special case: filibusters shouldn't be permitted there," then he would also be saying "legislation is a special case: filibusters shouldn't be permitted there": he puts them in the same sentence. And since 90+% of what the Senate does is "legislation," that would be an obviously absurd "defense" of the filibuster against Cutler's objection.

Posted by: Jeffrey Kramer on March 3, 2003 01:25 AM

Between the indentations and quotes, it is hard to interpret who said/meant what. I re-read the passage several times, and stand by my interpretation.

You are free to detest George Will as before. :)

Posted by: Bucky Dent on March 3, 2003 03:49 AM

1) Will 1993 explicitly acknowledges that the same Constitutional principles apply to "passing legislation or confirming executive or judicial nominees."
2) Will 1993 cannot therefore be saying that Constitutional principles forbid filibustering the confirmation process, unless he is also saying that Constitutional principles forbid filibustering the legislative process.
3) Will 1993 cannot be saying that constitutional principles forbid filibustering the legislative process, because that is precisely what Cutler is saying, and Will 1993 is saying Cutler is wrong.
4) Therefore, Will 1993 cannot be saying that Constitutional principles forbid filibustering the judicial confirmation process.

I would be glad to be shown how I could possibly be wrong here.

Posted by: Jeffrey Kramer on March 3, 2003 06:55 AM

Well, the constitutional argument against filibusters verges on silly. The Senate has the power to make its own rules. The 60 vote requirment is not for confirmation of the nominee, but for the procedural matter of terminating debate and having a vote on the merits of the issue. Deciding when to termiante debate is obviously a matter of procedure within the Seante's rulemanking powers.

Posted by: rea on March 3, 2003 09:09 AM

Why won't Bucky give us his valuable opinion on Will's abilities as a baseball writer?

My favorite of Letterman's "Top 10 Ways Pete Rose will spend his time in prison": Discussing George Will's fascinating baseball book with members of the Manson Family.

Posted by: JRoth on March 3, 2003 09:32 AM

I rather liked his baseball books, if you must know.

As to all the constitutionality stuff, bear in mind the GOP will also likely retain a blocking minority for the foreseeable future.

Posted by: Bucky Dent on March 3, 2003 10:11 AM

There's more...

On 8/15/1994, in his syndicated column, Will wrote:

"The idea that filibusters have become a serious problem is preposterous. Can anyone name anything of significance that an American majority has desired, strongly and protractedly, but has not received because of a filibuster? Who believes that insufficient activity is a defect of modern government?"

I suppose Will doesn't believe that confirming Miguel Estrada is something the "American majority... strongly and protractedly" wants. Or doesn't it matter anymore?

Posted by: Partha Mazumdar on March 3, 2003 04:57 PM

In 1993, Mr. Cutler believed that the Constitution implies that each house must take all decisions by majority vote (except in five enumerated cases), and hence that Senate Rule XXII, which required 60 votes to curtail debate by imposing cloture, is unconstitutional.
Mr. Will disagreed. He stated that "the generation that wrote and ratified the Constituion" "set the Senate's permissive tradition regarding extended debate," and noted that "there was something very like a filibuster in the First Congress."
Mr. Will reasoned that, while a majority vote decides the disposition of business with consequences beyond each house, such as votes to pass legislation or to confirm executive or judicial nominees, "procedural rules internal to each house are another matter." Mr. Will was saying that Rule XXII is a procedural rule, not subject to a majority vote requirement, and that therefore Mr. Cutler was wrong to think that Rule XXII is subject to the majority vote requirement.
It is not reasonable to read Mr. Will as saying that the Rule is constitutional as a procedural rule, UNLESS the cloture is sought on debate concerning legislation or executive or judicial nominees. Mr. Will's concern was that loss of Rule XXII would "facilitate the essence of the liberal agenda -- more uninhibited government." It is disingenuous to pretend that Mr. Will really meant to say that Mr. Cutler was RIGHT to believe that the Rule is unconstitutional in the cases that really matter (in 2003 as in 1993): cloture of debate affecting legislation and confirmation of nominees.
In short: in 1993, Mr. Will defended the constitutionality (and propriety) of a Senate rule requiring a supra-majority vote to close debate. In 2003, he argues that that Rule effectively amends the Constitution and its exercise "trumps the Constitution's text and two centuries of practice."

Posted by: march coleman on March 10, 2003 10:54 AM
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