Reforming the filibuster

Many activists will not tolerate a Democratic-controlled Senate that allows Republicans to block civil-rights legislation next year.

There is little doubt that if Democrats retake the Senate and the White House, the Republicans will be as obstructionist as they were under Obama. So if want to get anything done, they will have to face the issue of the filibuster. Mitch McConnell has warned the Democrats not to touch the filibuster but he is, of course, a unprincipled reptilian whose brain consists entirely of one giant amygdala, and who consequently is only interested in one thing: power. His open hypocrisy in stating that he would fill any SCOTUS vacancies that occur this year (after his refusal to bring Merrick Garland’s nomination up for a vote) amply demonstrates this fact. So we should ignore whatver he says about the filibuster. Rather than eliminate it entirely. I would like to propose a reform that would retain it while preventing Republican obstructionism while making the Senate more representative of the people.

Back in 2007, the Republicans controlled the Senate and had not yet eliminated the filibuster for judicial nominations. The Democrats used it often (but not nearly as often as the Rublicans were to use it during the Obama years) and came under fire as “obstructionists.” I wrote a piece urging the Democrats to take the offensive and defend themselves on the grounds that they represented the majority. At that time, 42% of Americans lived in states with two Democratic Senators, 40% in states with two Republican Senators, and 18% with one of each. Today, those figures are 44%, 40%, and 16% respectively (independent senators are counted with the party they caucus with).

The Democrats are in a good position to recapture the Senate in November. If so, their edge in constituents represented would likely increase. If they want to accomplish anything (assuming that they hold the House and gain the White House), they will have to do something about the filibuster. There is some debate concerning the constitutionality of the filibuster and they might well be tempted to abolish it altogether but I would like to suggest a better idea: on cloture votes (and only on cloture votes), weigh each senator’s vote according the population of their state and if the votes against cloture represent a majority of the US population, the vote fails. Pragmatically, it would make it virtually impossible for the Republicans to block anything and it can be defended as making the Senate more (small d) democratic. If the filibuster is a protection of minority rights, then this is one on steroids. In theory, a minority of only 18 Senators (representing the nine most populous states) could block a bill’s passage. I would also suggest that the filibuster as reformed be reinstated for judicial nominees.

Granted, there are one serious objection to this idea. The Constitution states (Art. I, sec. 3) that “each Senator shall have one Vote.” However, I think this can reasonably be construed to refer to votes on the passage of legislation and not to procedural votes such as closure. After all, the Constitution also says (Art. 1, Sec. 5) that “Each House may determine the Rules of its Proceedings.” The courts have given great deference to Congress’s procedural rules, holding them beyond judicial inquiry. The lead case is United States v. Ballin, 144 U.S. 1 (1892), where the Court stated

“The Constitution empowers each house to determineits rules of proceedings. It may not by its rules ignore con-stitutional restraints or violate fundamental rights, and thereshould be a reasonable relation between the mode or methodof proceeding established by the rule and ttie result which issought to be attained. But within these limitations all mat-ters of method are -open to, the determinatio. of the house,and it is no impeachment of the rule to say that some otherway would be better, more accurate or even more just. It isno objection to the’validity of -a rule that a different one hasbeen prescribed and in force for a length of time. The powerto make rules is not one which once exercised is exhausted. Itis a continuous power, always subject to be exercised by thehouse, and within the limitations, suggested, absolute andbeyond the challenge of any other body or tribunal.” 144 U.S. at 5.

But challenging weighted cloture votes presents a special problem. If the Democrats invoke cloture, the bill goes to a vote and then to the President. By the time a court can hear the case, the law in question will have duly passed both houses and been signed by the President, all in accordance with the Constitution. I can’t imagine any court invalidating a statute because it thinks the Senate should have debated longer. The case would be dismissed as moot. The courts could invoke the exception to mootness that it did in Roe v. Wade, i.e., that the issue was “capable of repetition, yet evading review.” However, even if the courts did ultimately strike down the procedure, the Democrats could then eliminate the filibuster altogether.

An idea worth considering, I think.

Get out the popcorn

The only reason a government agency (or anyone else) opens themselves up to documentary filmmakers is that they expect it will make them look good. However, unless they’re whores, the filmmakers’ job is not to make the subject look good but to show them as they are.

A new documentary peers inside the secretive world of immigration enforcement. The filmmakers faced demands to delete scenes and delay broadcast until after the election.

Dog bites man non-news: Trump ignores Constitution

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” U.S. Constitution, Article I, section 2, paragraph 3 (emphasis added).

President Donald Trump signed a presidential memorandum on Tuesday that would exclude undocumented immigrants from being counted in congressional districts when district lines are redrawn next year.

The schadenfreude is strong

After all, depriving millions of Americans of their health insurance in the middle of a pandemic is a remarkably stupid idea, even for this administration. Republicans deserve to suffer at the polls for this.

The solicitor general says a vote for the GOP tax cuts was a vote to eliminate protections for preexisting conditions.

The law still matters to some SCOTUS justices

“Trump keeps losing not because of something obscure, but because of something fundamental: his abuse of the executive branch. Much of his administration’s approach to governance rests on attempting executive actions that lack any meaningful justification rooted in expertise, or even rational thought. …

“Trump’s abuse of the executive branch is one of the most damaging aspects of his presidency, because it rejects a reasoned approach to making government policy. Trump has made clear—most notably during the impeachment process—that he disdains the civil servants who bring deep expertise and valuable experience to important policy questions. …

“Trump has made clear time and again that he doesn’t really care what the law says, especially about immigration. That’s why he urged shooting rock-throwing immigrants and retaliating against immigrant-friendly sanctuary cities by sending detained immigrants to such cities, and why he fired his own Homeland Security general counsel, who had pushed back on various questionable Trump initiatives. Trump doesn’t see law as a constraint, but something to be manipulated—and that’s clearly a message his Cabinet seems to have received. Consequently, they play fast and loose with the law. The Court, in this decision and last year’s, is essentially saying that the law still matters.

“Ultimately, that’s precisely what’s at stake as long as Trump is president. If all that matters is a president’s policy preferences, then law—including judicial review—is basically a facade: Dress it up enough, and it’ll pass muster. But if law matters—if building a record and considering facts and providing honest reasons matter—then Trump is sure to keep losing.”

The legal reasoning may look like it turns on obscure technicalities, but the administration?s cases are falling apart because of something much more deeply wrong.

Virtual depositions??

As a occasional litigator who (very) occasionally handles depositions, I don’t think I’d be at all comfortable with virtual depositions. And since they’re generally only used in civil cases, I don’t see the need. Civil cases can simply be put on hold for the duration of the crisis (that’s what Massachusetts is doing with a few exceptions).

Squire Patton Boggs partner Steven M. Auvil in March asked an Ohio federal judge to take a rather unusual step in a case he was working on, compel a remote deposition.

“To say Trump’s argument is frivolous demeans frivolity”

George Conway in the Washington Post concerning the release of Trump’s tax returns: “Trump’s position stupefies. In essence: Authorities can’t investigate anything touching his personal affairs — including, ahem, payments to pornographic actresses — because he’s president. Think of the logic: Not only does the president enjoy a personal constitutional immunity — his businesses do, too. …

“Likewise, the Constitution is concerned with protecting the presidency, not the person who happens to be the president. That’s because no one in this country is above the law. The Supreme Court is now called upon to teach that lesson once again — even if Trump will likely never learn it.”

The Constitution is concerned with protecting the presidency, not the person who happens to be the president.