Frank’s Case Book

”Congress shall have the power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” — Article I, US Constitution.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” — Amendment X, US Constitution.

In 1941,Claude Filburn,a farmer in Montgomery County, Ohio sowed 23 acres of wheat. This acreage exceeded his 11.9 acre allotment under the Agricultural Adjustment Act of 1938. However, Filburn never intended his crop for commerce, interstate or otherwise. The wheat was consumed on his farm by his family and his livestock. The Federal government fined Filburn for his deliberate, wanton, and excessive farming. Filburn challenged these fines and the case found its way to the US Supreme Court.

The US Constitution grants Congress the explicit power to regulate interstate commerce, the so-called “Commerce Clause” of Article I. Filburn’s position was that his wheat production did not represent commerce and certainly not interstate commerce. Hence, it could not be regulated by the Congress. Looking back we can understand the economic foolishness of central control of the agricultural economy, but in during the Great Depression and its aftermath, the power of the Federal government was expanded to meet economic exigencies. After a few judicious appointments to the Supreme Court by President Franklin D. Roosevelt, a largely compliant Court searched for ways to justify these extensions of Federal power.

In Wickard v. Filburn, the Court ruled for the Federal government by arguing that “interstate commerce” included intrastate production and consumption. Certainly, in the Court’s view, local private consumption can have consequences on interstate commerce. Justice Robert H. Jackson, a judge recently appointed by President Roosevelt and writing for the Court in the case, argued that economic necessity “has made mechanical application of legal formulas no longer feasible” and that interstate commerce “extends to those activities intrastate which so affect interstate commerce.”

The thread of effect from farmer Filburn’s 23 acres of wheat produced and consumed entirely within a single state, within a single county, indeed on a single small private farm to interstate commerce is extremely thin. Under such an aggressively broad definition, the power to regulate interstate commerce grants the Federal government the power to regulate virtually any activity. Thus, a Constitutionally enumerated power of Congress grows into an expansive license. Jackson and Roosevelt’s Court were certainly more fecund in producing Federal power than poor farmer Filburn was in producing wheat.

The consequences of such foolish precedents tend to propagate indefinitely. Over sixty years later, California and a number of other states explicitly permitted private cultivation and use of marijuana for medicinal purposes. This time, a usually Conservative President George W. Bush and his Attorney General Alberto Gonzalez sought to use the Federal government’s interstate commerce powers to prohibit such activities. Last week, the US Supreme Court in Gonzales v. Raich, again ruled for the Federal government. Pursuant to a broad interpretation of the interstate commerce clause as given in Wickard v. Filburn, the Court decided that the Federal government can prohibit the private production and use of marijuana.

The decision was 6-3, with Justices Sandra Day O’Connor, William H. Rehnquist, and Clarence Thomas dissenting. Unfortunately, Justice Antonin Scalia, usually a reliable adherent to an “original understanding” jurisprudence, sided with the majority. However, even Scalia’s vote would not have made a difference. Justice Thomas’s dissent was the most direct and eloquent:

The respondents “use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

“…the only way in which a human being can make some approach to knowing the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion.” — John Stewart Mill, On Liberty.

A couple of weeks ago, Linda Foley the President of the Left-leaning Newspaper Guild, speaking at the National Conference for Media Reform accused, without the courtesy of providing proof, the American military of deliberately targeting journalists. Perhaps more revealing was that Ms. Foley’s remarks were greeted with applause and cheers confirming that her audience was sympathetic to her remarks. One gets the sense that there is an incestual reinforcement of views between Ms. Foley and her audience that blinds both to alternative points of view.

After the firestorm that followed Ms. Foley’s remarks, one might have thought she would be more circumspect in her comments, at least for a little while. But the lure of an enthusiastic, like-minded audience proved too great a temptation. Following Ms. Foley around with a microphone in search of an incendiary statement is akin to following a fuse to a bomb. The inevitable happens. On a discussion panel on media reform at the Take Back America Conference held at the Washington Hilton in Washington DC this last week, Ms. Foley seemed to eschew balanced news reporting. She said: “The conservatives have got us, as a country, now believing that balance — giving both sides — is the same as truth, and there are some things that are just false.”

Deconstruction of the statement provides and interesting insight into the maelstrom of ideas swirling around what counts for modern Liberal minds. By “balance,” Ms. Foley is referring to equal coverage of competing ideas. Ms. Foley believes that the press should identify ideas or notions that progressive minds have decided are settled and not open to debate, upon which there is no longer legitimate controversy. In such cases, according to Ms. Foley’s prescription, giving both sides is misleading. It gives people the false impression that both sides of the argument have equal merit. Foley’s argument reveals an arrogant distrust in the public’s ability to properly weigh the arguments.

Josh Silver of the Fair Press, on the same panel, offered an example of a settled issue that does not require balanced presentation: global warming. The media should not present both sides, because one side has been so discredited. Leaving aside for the moment the fact that there remains considerable scientific debate as to the rate of global warming, what fraction of it is associated with anthropogenic sources, and the relative costs between reducing green house gas emissions versus dealing with the consequences of warming, would not a balanced presentation on global warming inevitably lead the public to a the fair conclusion based on the evidenc? Given the difficulty Ms. Foley has in choosing her words carefully, one is not inclined to allow her the discretion to decide what issues have or have not been settled.

There are other social questions that have been decided empirically, but which Liberals have chosen to ignore. The correlation between intact families and positive outcomes for children is undeniable, but is certainly not given much attention by progressive journalists. Such a settled question would not be politically convenient for some. That home schooling and private and charter schools are generally at least as good for children as government-run schools does not receive much attention. Such a settled question would politically harm school teacher unions, an important Liberal constituency. That a promiscuous gay-male lifestyle bore considerable responsibility for the rapid spread of lethal AIDS infections is a settled question. However, this settled issue is not given much media attention for fear that it would reflect badly on gays. Intolerance for alternative view points is a Liberal “fundamentalism” more severe, rigid, and exclusionary than the much caricatured religious fundamentalism.

There indeed may be some settled questions that we need not continually debate. Journalists need not spend time presenting both sides on the issue of whether the Earth is flat. That is a settled question among for nearly all of us. However, there are some questions that Liberals might considered settled that many do not. Part of good journalism is recognizing those issues for which there is real disagreement in the public, even if the journalists themselves have reached their own conclusions.

The inability of Ms. Foley to see the danger of unbalanced reporting, it precisely why people are migrating away from Liberally-biased sources of news. People perceive the imbalance and do not appreciate a one-sided presentation. If a question is settled, then it would not be news and need not be reported at all. If there is significant disagreement among a large number of people, a decent respect for the consumer of news requires a balanced presentation. Why should people trust those news sources that don’t trust them; that eschew the necessity for balance and arrogantly presume the wisdom to decide which issues ought to be controversial and which ought to be settled? The comments of Foley and her Liberal compatriots are an outgrowth of the extreme frustration that when both sides are presented, some people arrive to different conclusions than they do.

Reporters should report, we should decide.

The controversy over the filibuster of judges is far more difficult for Conservatives than it is for modern Liberals. After four years of whining, complaints, grumbling, and protests about the Constitutionally-mandated Electoral College, the present Democratic feigned devotion to the judicial filibuster and the rights of political minorities is too transparently disingenuous to even be hypocritical. It is a totally insincere and manufactured self-righteousness marshaled in the service of patent political pragmatism.

Conservatives are congenitally suspicious of transient majorities and favor slower and more deliberative processes. Conservatives believe that large changes are best accompanied by clear rather than narrow majorities. When we have narrow majorities little happens and this is generally good. This disposition is what animates the reluctance to challenge the filibuster from Conservatives like George F. Will.

Honest people or those whose minds are not sealed shut with the cement of political partisanship acknowledge that the use of the filibuster to block judges, that would otherwise win a majority vote on the floor of the Senate, is unprecedented. However, the filibuster can play a salutary legislative role. Since Democrats in the Senate have raised the stakes by using the filibuster, some Conservatives are fearful that if Republicans use their majority to change filibuster rules with regard to judicial nominees, it will serve as precedent for future Democratic majorities to eliminate the legislative filibuster.

The entire political fight between the Republicans and the Democrats reflects the present disposition of Republicans to regard themselves as a minority party in temporary control and the Democrats to believe that they are really the majority party that has fallen into a transient minority position. Republicans, especially older ones have the soul of a minority party. As a consequence, they are inherently reticent about circumscribing the rights of legislative minorities. Democrats by contrast are pushing for minority rights now, but will little compunction about eliminating them when they return to a legislative majority.

We already know this will be Democratic behavior. Democrats, sometimes with Republican help, are the party that chiseled away at filibuster rules in the past, from the point where one Senator could stop the Senate, to requiring a 33% minority, and eventually a 40% minority. It is not hard to see that if Democrats are stymied in the future by a persistent legislative minority, they will trim the power of the filibuster even further.

At this point, the Democrats have, in effect, altered tradition by insisting upon a supermajority of 60% for judicial appointments. Republicans have a choice: they can accept this new requirement or fight it. When Democrats come to power, they will not have to face these same limitations for two reasons. First, Republicans have never used the filibuster to stop the nomination of someone who would be confirmed by the full Senate. Even if Republicans follow the new precedent established by their Democratic colleagues, Democrats will have few qualms about using their majority position to change the rules back again. If over 200 years of tradition and precedent could not compel a more collegial approach to judicial nominations, it is doubtful that even a dedicated and disciplined Republican minority could stand in their way.

Ask yourself why Democrats, as a minority in the Senate, would risk the legislative filibuster by the unprecedented extension of the filibuster to judicial nominees. They see little down side. If Republicans allow the judicial filibuster, they can block Bush’s choices without calling a single vote on the Senate floor. They, in effect, negate the prerogatives of the President and the choice of the people in the last election. When they become a majority party they will simply change the rules again on their own behalf.

Though many Republicans do not realize it, there is now really little risk for Republicans in voting down the judicial filibuster. Whether Republicans restrain themselves or limit the judicial filibuster, Democrats can be depended upon to not exercise restraint in the future. Republicans should act like a majority party now, while they have the opportunity. The Democrats certainly will.

“[The] Senate of the United States is the only legislative body in the world which can not act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” — President Woodrow Wilson.

It was only five years ago when Democrats were doubled over in acute political pain as George W. Bush’s victory the 2000 election punched Democrats in the gut. Bush won with a narrow margin in the Electoral College and just as narrow a loss in the popular vote. Although the Constitution is clear about how a president is elected, we heard a never-ending torrent of complaint that the Electoral College was antiquated and should be reformed. The will of the people as reflected in a direct majority, as opposed to assent filtered through the structures of a republican government, should be supreme.

Democrats today are not so sanguine about majorities. Now they sing of the virtues of the legislative filibuster, the tool of a persistent minority. Democrats condescendingly explain that the Senate should be a “cooling saucer,” preventing the government from being swept along by a fervent majority. Nonetheless, the current debate over the legislative filibuster has the virtue of forcing us to re-examine the underpinnings and assumptions of both Constitutional provisions and legislative rules.

The current controversy is centered around the duty of the Senate to “advise and consent” on Presidential appointments of federal judges. President George W. Bush has nominated a number of judges to the Federal bench that Democrats are holding up. If brought to the floor, most if not all, of these nominees would win confirmation with a majority. However, Democrats in the minority can exploit the filibuster rule that, in effect, requires a 3/5 majority (60 Senators) to close debate and bring the nomination to the floor of the Senate for a vote. Hence, with only 41 Senators, a minority is able to reject a presidential nomination.

There is no doubt that Senate rules allow for this outcome. However, there is procedure by which a simple majority can change the filibuster rules to prevent them from being applied to judicial nominations. This is either the “nuclear option” or the “Constitutional option” depending on the spin one wishes to apply. Democrats are crying foul, embracing a claim to defend the rights of minority.

The real history of the filibuster is a complicated and interesting one. Gold and Gupta provide a comprehensive review in a scholarly article in the Harvard Journal of Law and Public Policy [1]. In identical wording, the Constitution provides that both the Senate and the House can make their own rules. In the very first Senate, there were no filibuster provisions. Following the common practice of the time, including the Continental Congress and the British House of Commons, and the present rules of House of Representatives, a simple majority can end debate and bring anything to the floor for a vote.

In the 1806 codification of the Senate rules by then Vice-President Aaron Burr, there was acknowledged oversight which allowed for unlimited debate. Rather than filibusters in the Senate being a Constitutional provision, filibusters were introduced by accident. The use of unlimited debate to prevent bringing a bill to the floor was first employed in disputes over the Bank of the United States in the 1830s. Though the filibuster was infrequently used, for 111 years (1806 to 1917), a single Senator could prevent a vote on a bill by simply continuing talk. This is the ultimate in minority rights. A single Senator could stop the Senate from action.

In 1917, isolationist Republicans used the filibuster to make it more difficult to President Woodrow Wilson to prepare for war. Using the threat of eliminating the filibuster rules altogether, a compromise change in rules was agreed to. Two-thirds of the members of the Senate could vote “cloture” to end the filibuster.

During the rest of the 20th century, the filibuster was used most effectively by Southern Democrats to bottle up civil rights legislation. Again in response to the threat of a drastic limitation of the filibuster, rules were slightly modified in 1959 to allow for cloture with 2/3 present as opposed to 2/3 of the entire Senate. Further limits were agreed to in 1975 when cloture could be evoked by 3/5 of the Senate (60 senators). Further reforms were pushed through by Senator Robert Byrd (who now worships the filibuster as a member of the minority) to provide alternative means to limit debate.

In short, the Senate rules about filibuster, instituted by accident, are just rules than can and have changed from time to time. The filibuster is not unconstitutional nor is it any way required by the Constitution. It is not a gift from our Founding Fathers, but an accident.

The recent use of filibuster to prevent the President’s judicial nominees from receiving an up-or-down vote in the full Senate is, if not unprecedented, at least very rare and a recent phenomenon. Save for the large number now being filibustered by Senate Democrats, the only previous use was during the confirmation of Abe Fortas for promotion from a Supreme Court justice to chief justice. In 1968, Republicans were concerned about the ascension of a liberal justice following the expansive rulings of the previous Warren Court. However, the Abe Fortas case was atypical since it was revealed in hearings that Fortas kept President Lyndon Johnson informed of the secret deliberations of the Court and had accepted what seemed to be excessive and inappropriate private payments for teaching a summer course at American University. This is hardly the precedent, Democrats should base their current opposition to nominees for whom the only objection is one of political philosophy.

The current debate about filibusters can have an important impact on future Senate actions. However, the current tussle is one of political wills, not of constitutional dimensions.

If the situations were reversed, we know that Republicans and Democrats would have different arguments. We know this because situations were once similarly reversed. During the Clinton administration, Republicans kept some of President Bill Clinton’s nominees from coming to a vote on the Senate floor. Rather than needing a filibuster, Republicans were able to bottle up some nominations by the more conventional process of not reporting the nominees out of committee by a majority of the committee.

At that time Barbara Boxer (D-CA) had different position with respect to judicial nominees when she said, “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.” Similarly Diane Feinstein (D-CA) averred, “Our institutional integrity requires an up-or-down vote.” The dean of Senate Democratic Senators Edward Kennedy (D-MA) indignantly argued, “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.”

It must be the mark of a truly agile politician to be able to argue both sides of an issue with equal measures of sincerity. The question is now whether Republicans will call the Democrats bluff and end the filibuster of judicial nominees.

References

1. Gold, M. B. and D. Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” Harvard Journal of Law and Public Policy, vol. 28, 68 pages, 2004.