I Question the Value of Mitch McConnell

Listening to him criticize Professor Goodwin Liu, now up for confirmation to the Ninth Circuit Court of Appeals, on the assumption, nowhere indicated from the record, that he would apply “foreign law” in the courtroom:

People shouldn’t have to wonder, when they step into the courtroom, what country’s law the judge is going to apply!

Huh? Judges sometimes apply foreign law — it’s true. But that’s because the parties contract that foreign law shall apply, or lose a choice-of-law argument to someone who expected foreign law would apply. This isn’t an outrage; its’ the bread-and-butter of federal litigators. Are we to override the primacy of contract, and vitiate justifiable expectations, because it confuses the honorable Senator from Kentucky?

Democracy. Man, I give up.

Update: once more, the Senate blocked Professor Liu, presumably for the sin of being nominated by a Democrat. Daily Kos rounds up a list of still-sitting Senators who’d promised, under Bush, never to filibuster a judicial nominee, no matter the administration. Ladies and gentlemen, your party of principle.



  1. Why was there a cloture vote to begin with? Is invoking cloture really the only way to move to a Final Vote on something? It ain’t like a real filibuster Bernie Sanders/Strom Thurmond style was going on.

    I have two other thoughts, but marriage it, I’ve got tacks and I’m hungry.

  2. Actually, I had tacos. I’m still training my Droid-phone’s spellcheck function.

    Anyway, I don’t have a problem with judicial “filibusters”. Was fine for Democrats to do it to Bush nominees, is fine for Republicans to do it to Obama’s nominees, will be fine for both of them to do it to my nominees. I’m especially opposed to the argument that it’s somehow “unconstitutional” or “anti-constitutional”. To quote myself (from a comment at Volokh):

    The Constitution states regarding the President’s appointment power:

    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.

    I see a 2/3 supermajority requirement for Senate approval of a treaty. And that’s all I see that begins to address the form of the Senate’s “advice and consent”.

    The reason I don’t understand it “to be the case that the Constitution requires an up-or-down majority vote within a ‘reasonable time’ (whatever that may be) on every Presidential nominee that requires Senate approval?” is that the Constitution doesn’t say anything of the sort. That means however the Senate wants to do it is valid. They can do an up-or-down majority vote. They can do a 60-vote supermajority cloture vote followed by a an up-or-down majority vote. They could do a simple majority cloture vote followed by a 3/4 supermajority up-or-down vote. They could require that the vote be exactly 67 in favor, 32 against, and 1 abstaining/vacant seat. They could require a unanimous vote. They could dispense with voting altogether and instead appoint champions for the “yes” senators and the “no” senators who would then settle the matter through trial by battle. There is nothing in the Constitution that places any limits on how the Senate goes about providing its advice and granting or withholding its consent other than Article I, Section 5 — which says the Senate (and thus the Senate alone) gets to decide how it goes about doing that.

    I should add that there’s nothing in the Constitution that specifies legislation has to be passed by majority-vote in the first place. The Constitution speaks about Congress voting in exactly these ways:
    – Each senator gets 1 vote (note that Art. I, Sec. 2 says nothing about Representatives getting a number of votes, implying that the House can adopt rules with a non-uniform number of votes per Representative – or not hold votes at all for most matters)
    – The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. (Note that this only says if a tie occurs, the Vice President gets to resolve it – not that ties must be allowed in the first place).
    – A 2/3 Senate vote for conviction after impeachment (note that while the House has sole power of impeachment, the method of exercising that power is not specified. Note also that it’s 2/3 “of the members present”, and since quorum is simple majority, it needn’t be 2/3 of the entire Senate – it can be as low as 1/3 + 1 of the entire body. Though that’s an unlikely scenario.)
    – A 2/3 vote of either body can kick a member out.
    – A 1/5 vote of either body can force any other vote to be a roll-call vote.
    – A 2/3 vote of both bodies to override a veto.
    – A 2/3 Senate vote to approve a treaty.
    – A one-vote-per-state 2/3 vote of the House of Representatives to pick the winner of a Presidential election if the Electoral College doesn’t pick a winner.
    – An overall majority Senate vote to pick the Vice President if the Electoral College doesn’t pick a winner (for this they have a special 2/3 majority quorum – but it’s not a majority vote of the members present)
    – A majority vote of both houses to confirm a replacement Vice President.
    – A 2/3 vote of both Houses within 21 days to prevent the President from resuming the Presidency after giving the Vice President the Acting Presidency (this is the only Constitution-specified time limit on a Congressional vote).

    Beyond that, it’s the Article 1 Section 5 “each House sets its own rules” thingy. Which means a number of interesting but irrelevant things (like that the House doesn’t have to use voting at all for most legislation, and even if it does do voting, it doesn’t have to use one-member/one-vote and doesn’t have to use simple-majority votes. It could, for instance, give its members one vote for each term they’ve served and require a 75% supermajority of all the votes in order for legislation to pass. Or they could vote by state, with each state’s delgation picking its vote according to whatever method the House sets. Hell, they could draw their names out of a hat, and whosever name came out would decide whether the bill passed or not.). And it means there’s no simple-majority yes/no vote required for confirmation. Instead, there’s Whatever The Senate Rules At The Time Say required for confirmation.

    Moving on… Yeah, some of the reasons Senators say they have for opposing nominees are obvious bullshit. Problem is, enough people (I’m not one of them, by the way) don’t consider ideological disagreement or disapproval of jurisprudence an acceptable reason for voting against a nominee and so the Senators feel pressure to lie and state a reason besides that when that’s their reason for voting against a confirmation.

    Anyway, as long as they’re going to insist on holding cloture votes (is there really a Senate Rule that specifies they have to have a cloture vote if there’s no actual filibustering happening? I’ve heard there isn’t.), I’m perfectly happy to treat a lost cloture vote as an outright rejection of a nominee.

    1. Erik J · ·

      The delicious irony of the whole thing is that may of the people who voted “nay” on cloture for Liu’s appointment were people who pledged — and argued — that all judicial nominees deserved a straight “up-or-down vote”.

      1. Like I said, I disagree with their argument that all judicial nominees “deserve a straight ‘up-or-down vote'” and would never have made that pledge they did.

        But yeah, people ought to be consistent.

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