Setting Aside The Rules

I participated in a conference call with Senate Minority Leader Reid Monday. The topic was the Republican "nuclear option" of not allowing filibusters anymore.

Senator Reid said something that I don't think the public is being made sufficiently aware of. He said that the Senate Parliamentarian has stated that this idea the Republicans have of changing the rules of the Senate to disallow filibusters of judicial nominations is itself against the rules of the Senate! (For one thing, the rule change itself could be filibustered, so the Republican insistence that 51 votes is enough to change the rules is against the rules.)

But the Republicans are saying no, they are just going to change the rule, regardless of what the Senate rules allow or do not allow. Just because they can, and no one can stop them.

I think the implications of this are disturbing, to say the least. The Republicans are saying they just will not follow the rules of the Senate, because they have the power to say this, and that's that. Rules will no longer apply. And as I understand it the Democrats can't take this to the courts, because separation of powers prevents the courts from getting involved with the internal rules of the Senate. (And if they could take it before the courts, would judges appointed under the Republican rules hear the case...?)

So this is a bigger deal than just a battle over appointing a few judges. This will be a full-blown Constitutional crisis, well beyond the 2000 Supreme Court decision to set aside the election and appoint Bush as President. This will be about the Republicans saying they will just make up the rules as they go along, because they have the power to do so.

My question is, how is this different from a coup, takeover, whatever you want to call it? I ask that question in all seriousness and I hope we can have a discussion in the comments, because I don't know the answer. I know I get worked up over things like this (I mean, I'm a blogger, right?) and I would like someone to calm me down and tell me how this is not a takeover. Leave a comment. Reassure me. Tell me not to worry.

Can't do that. Worry! These are dark days indeed.

Besides hanging on here for potential insight from our attorney friend or other students of rule-making, I'm also curious to hear from any historians we may have in our house to comment on whether there have been similar challenges to the rule of law in the past. Have other generations suffered through abuse of due process - either on the congressional floor or out in the "relatively" open operations of our governmental agency process? Perhaps in those lawless days of the late 19th century?

And if so, how did they re-right the ship of state to the balanced bipartisan process we've all come to love and embrace? (… return with us now to the days of yesteryear, when things were sane! or appeared that way...)

And I'm guessing the reaction to the Johnson query will split evenly down partisan lines... or so I fear.

The first was an actual legal statute, signed into law by John Adams (reportedly only signing it because his wife was so much in favor of it, but also allegedly relieved when it eventually went out of existence, the law having been such an embarrassment to him.) The acts may actually have been unconstitutional, but this all happened before John Marshall's court established the responsibility of the judiciary to decide such things.

And FDR, as I recall, also tried his packing scheme the legal way, but failed. (Although the attempt did spook the Supremes enough in 1937, prompting them to change their approach to the Constitution such that the present day "Constitution in Exile" conservatives think SCOTUS continues to uphold unconstitutional laws all the time. See the article a week or so ago in the New York Times Sunday Magazine.) [That was April 17, 2005 - available here for a fee, and discussed by lawyers here and here.]

But what is being discussed here, of course, are Senate "rules," not actual laws as such. And as someone else pointed out in here, Senate rules are out of the reach of the courts, who see them as in the "political" jurisdiction of Senate leaders, as opposed to "legal" jurisdiction of courts. Tradition has been that to treat it differently could be seen as a violation of the separation of the three branches.

Then again, I myself (although admittedly not an expert on this stuff) would guess that, if ever the Senate rule-changing got way out of hand, the Supreme Court, the acknowledged defender of the Constitutional faith, could intervene on the grounds that - let's face it - the Constitution does lay out the basic idea of what Congress is supposed to do, something the Senate does not have the power to change without going through the amendment process. But if it ever came to this, I imagine that would be considered a "constitutional crisis" if there ever was one, especially if the Senators fight back.

Of course, we may already be heading toward such a crisis, given that certain segments of Congress are discussing impeaching judges who they disagree with. It seems to me the Constitution is pretty clear about how this is not allowed.

Still that's interesting about this rule change being technically against the rules, and that the change itself could be filibustered. I wonder why we haven't heard much about that.

I've been way to busy (and possibly too apathetic) to participate of late, and the immediate future does not bode well. Moving to Belgium next week, for chrissakes!

But I disagree that were screwed. Were only temporarily screwed. Yep, this is a constitutional crisis of the highest order, one that could end our current government (but only in that French 5th Republic kind of way).

Bring it on.

I've been saying for a long time that the constitution is a broken document, one that doesn't work in the age of news 24/7, the fiction of "states rights", the military industrial complex, shamelessly gerrymandered congressional districts, 100 million dollar presidential campaigns and so on. This is our chance to stop thinking of the constitution as some holy writ, and eventually enter a 2nd American Republic, with a constitution that works today. This will only happen if the 1st completely stops working.

Hey, this will be painful. We may have to live through some dark years, but this is a way forward, don't you think? A bit of creative destruction?

George Bush, President for Life! (pardon the pun)

Joseph, you're on to the same kick that gave Tom Peters his big third run of remaking his evangelical self - the break it and rebuild it (before someone else breaks you first) kick. Peters advocated institutional pro-activity. As we all know institutions - especially public ones - are anything but - so in a reactionary sense, Tom (and me too) would approve of your French Republic corollary.

And Belgium gets to claim you next? Is that good fortune? Hope so! Have fun with the disruption in lifestyle (personal microcosm of your national thoughts?)

Yipes! I really disagree with you two on this one.

I really like the idea of us having the world's oldest constitution still in effect, and have always been proud that we didn't go the route of the French (who, don't get me wrong, I mostly admire otherwise), with this business of knowing you can always just scrap the old plan and come up with a new one. I think that would, especially in this country, open the system up to lots of very dangerous mischief, most likely supplied by the crazies who are pulling all the strings in Washington today and rubber-stamped by an uninformed electorate who already doesn't hold complex political theory in very high regard.

With whatever there may be wrong with our constitution today, I vote we keep improving on it, rather than risk what might happen if we trash the whole thing and start over.

Joseph, I understand the idea that if you want an omelet you have to break some eggs. That said, I ain't real hot on bulldozing the henhouse. The theoretical improvement that you think might benefit my grandchildren (if I had any) isn't going to help me a whole lot, and I would just as soon not go through an "It Can't Happen Here" or "Handmaid's Tale" to get to Utopia.