“Judicial And Legislative Nullification”: Republicans Have Only Themselves To Blame For Harry Reid’s “Nuclear Option”
If the Founding Fathers could see the Senate after today’s vote by Senate Democrats to prohibit filibusters of most presidential appointments, they would, of course, be appalled. ”What are all these women doing here?” they would ask. But as for the filibuster reform, they’d wonder what all the fuss was about.
There is no mention of the filibuster in the Constitution. Until very recently in U.S. history, filibusters were rarely used. Half of all filibusters of executive-branch nominees have occurred under President Obama, and it was obvious from the first day of his presidency that Republicans would use the tactic to hamstring the government and block Obama.
Senate Majority Leader Harry Reid, then, had every right to push for changes to filibuster rules four years ago, when GOP use of the filibuster was already out of control. But instead, Reid offered deal after deal to Senate Republicans. They accepted some. They honored none. Instead, the delaying tactics have continued. Frequently they have been used to block the implementation of laws the Senate had passed — the two-year filibustering of the first head of the Consumer Financial Protection Bureau, for example, just because Republicans didn’t like the law. And Republicans have paired judicial nullification with legislative nullification, blocking a record number of Obama’s judicial appointees — a power the Constitution actually mentions, unlike the filibuster — for no real reason other than that they were Democratic nominees, not Republican ones. (Democrats were guilty of this under President George W. Bush as well, it must be noted, and deserve criticism for that, even if the number of filibusters was lower.)
The result, as political scientist Gregory Koger summed up nicely for my Post colleague Ezra Klein, has been the solidifying of a new order in the U.S. system of government:
Over the last 50 years, we have added a new veto point in American politics. It used to be the House, the Senate and the president, and now it’s the House, the president, the Senate majority and the Senate minority. Now you need to get past four veto points to pass legislation. That’s a huge change of constitutional priorities. But it’s been done, almost unintentionally, through procedural strategies of party leaders.
This status quo is unacceptable and had to change.
But Reid never would have used the “nuclear option” without the lemming-like behavior of Senate Republicans. Less ideological GOP members could have voted more frequently to break cloture and force an up-or-down vote, as members of both parties have done, even as filibuster use has increased. They could have stopped the unprecedented number of filibusters of presidential nominations, given that the president has a clearly defined constitutional responsibility to appoint people. They could have stopped blocking duly passed laws. But they didn’t.
So Republicans decrying filibuster reform as “dictatorial” or “a day to be sad” or other hyperbolic claims should look in the mirror. No one forced them to turn filibusters from a rarity to an oft-used tool for nullification and unprecedented obstruction. They have only themselves to blame.
By: James Downie, The Washington Post, November 21, 2013
“Congress, Be Careful What You Wish For”: For Far Too Many Lawmakers, It’s So Much Easier To Criticize Than Govern
The funny thing about a dog that chases a car? Sometimes it catches the car and has no idea what to do next.
Over the last several days, members of Congress have spoken out with a variety of opinions about U.S. policy towards Syria, but lawmakers were in broad agreement about one thing: they wanted President Obama to engage Congress on the use of military force. Few expected the White House to take the requests too seriously.
Why not? Because over the last several decades, presidents in both parties have increasingly consolidated authority over national security matters, tilting practically all power over the use of force towards the Oval Office and away from the legislative branch. Whereas the Constitution and the War Powers Act intended to serve as checks on presidential authority on military intervention abroad, there’s been a gradual (ahem) drift away from these institutional norms.
That is, until this afternoon, when President Obama stunned everyone, announcing his decision to seek “authorization” from a co-equal branch of government.
It’s one of those terrific examples of good politics and good policy. On the former, the American public clearly endorses the idea of Congress giving its approval before military strikes begin. On the latter, at the risk of putting too fine a point on this, Obama’s move away from unilateralism reflects how our constitutional, democratic system of government is supposed to work.
Arguably the most amazing response to the news came from Rep. Peter King (R-N.Y.), the chair of the House Homeland Security Subcommittee on Counterintelligence & Terrorism, and a member of the House Intelligence Committee:
“President Obama is abdicating his responsibility as commander-in-chief and undermining the authority of future presidents. The President does not need Congress to authorize a strike on Syria.”
This is one of those remarkable moments when a prominent member of Congress urges the White House to circumvent Congress, even after many of his colleagues spent the week making the exact opposite argument.
The next question, of course, is simple: now that Obama is putting Congress on the spot, what’s likely to happen next? Now that the dog has caught the car it was chasing, what exactly does it intend to do?
Lawmakers, in theory, could cut short their month-long break, return to work, and consider their constitutional obligations immediately. That almost certainly won’t happen, at least not the lower chamber — as my colleague Will Femia reported earlier, House Republican leaders have said they’re prepared to “consider a measure the week of September 9th.” There are reports Senate Democratic leaders may act sooner, but no formal announcement has been made.
The dirty little secret is that much of Congress was content to have no say in this matter. When a letter circulated demanding the president seek lawmakers’ authorization, most of the House and Senate didn’t sign it — some were willing to let Obama do whatever he chose to do, some didn’t want the burden of responsibility. Members spent the week complaining about the president not taking Congress’ role seriously enough, confident that their rhetoric was just talk.
It spoke to a larger problem: for far too many lawmakers, it’s so much easier to criticize than govern. In recent years, members of Congress have too often decided they’re little more than powerful pundits, shouting from the sidelines rather than getting in the game.
It’s one of the angles to today’s news that’s so fascinating — Obama isn’t just challenging Congress to play a constructive role in a national security matter, the president is also telling lawmakers to act like adults for a change. They’re federal lawmakers in the planet’s most powerful government, and maybe now would be a good time to act like grown-ups who are mindful of their duties.
In his first inaugural address, Obama said, “[I]n the words of Scripture, the time has come to set aside childish things.” For the last four-and-a-half years, much of Congress ignored this call. Today, members received a striking reminder.
Yes, Congress is a hapless embarrassment. It can’t pass a budget; it can’t pass a farm bill; and it can barely manage to keep the government’s lights on. But institutional responsibilities don’t fade away just because radicalized GOP lawmakers are struggling through a post-policy phase.
There is a real possibility that Congress will simply decline to give the president the authorization he seeks. I suspect Obama will get the votes he needs, but note that Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.), two senators who never saw a country they weren’t tempted to bomb, issued a statement this afternoon that read:
“We believe President Obama is correct that the Assad regime’s use of chemical weapons requires a military response by the United States and our friends and allies. Since the President is now seeking Congressional support for this action, the Congress must act as soon as possible.
“However, we cannot in good conscience support isolated military strikes in Syria that are not part of an overall strategy that can change the momentum on the battlefield, achieve the President’s stated goal of Assad’s removal from power, and bring an end to this conflict, which is a growing threat to our national security interests. Anything short of this would be an inadequate response to the crimes against humanity that Assad and his forces are committing. And it would send the wrong signal to America’s friends and allies, the Syrian opposition, the Assad regime, Iran, and the world — all of whom are watching closely what actions America will take.”
In other words, McCain and Graham realize Obama is eyeing narrow, limited military intervention, and they’re outraged — they want a broader conflict with a massive U.S. role. They may well vote against a measure on Syria because it doesn’t go far enough in their eyes.
And that’s certainly their right. Others will oppose strikes for progressive reasons. Others still endorse the White House strategy.
The point is, the people’s elected representatives will have a debate, which is exactly what it should do. It won’t be pretty, but it’s how the United States is supposed to operate. Congress has clear responsibilities — whether lawmakers want them or not — and it’s time they exercise them.
By: Steve Benen, The Maddow Blog, August 31, 2013
“Just Secede Already!”: Texas Asks Court To Nuke The Voting Rights Act, Forever
When the Supreme Court dismantled a key provision of the Voting Rights Act last June, there were two small silver linings in this decision. The first was the possibility that Congress could revive the regime killed by the Court, where states with particularly poor records of racialized voter suppression must “preclear” their voting practices with the Justice Department or a federal court before those practices can take effect. The second potential silver lining is Section 3 of the Voting Rights Act, which allows a state to be brought back under the preclearance requirement if a court finds that it engaged in “violations of the fourteenth or fifteenth amendment justifying equitable relief.”
Now, however, Texas wants to destroy these two silver linings as well. And there is a fair chance that the conservative Supreme Court will allow them to do so.
Late last month, the Justice Department joined a Section 3 lawsuit claiming that federal supervision of Texas’ election practices should be reinstated in light of very recent examples of intentional race discrimination by Texas. Among other things, a federal court found that Texas “consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district’s] Anglo citizens.” These, the Justice Department explained, were “violations of the fourteenth or fifteenth amendment” justifying federal supervision.
Texas’ response to the Justice Department does not simply reject the idea that it should be subject to preclearance, it calls upon the courts to declare virtually any preclearance regime unconstitutional. According to Texas, the Supreme Court’s decision hobbling the Voting Rights Act “threw out Congress’s reauthorization of a preclearance regime because the legislative record failed to show ‘anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.’” In other words, Texas wants a federal court order saying that any effort to reinstate the Voting Rights Act in Texas is unconstitutional unless Texas transforms into Mississippi at the height of the Jim Crow era.
And they may very well succeed in getting this order. While Texas’ theory cannot be squared with the text of the Fifteenth Amendment — which provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and gives Congress “power to enforce this article by appropriate legislation” — it is not that hard to square with the Supreme Court’s recent decision. Chief Justice John Roberts’ opinion does indeed contain language suggesting that only something “approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965″ can permit a preclearance regime now. The fact that this language flies in the face of the Constitution is not likely to bother the five conservative justices who already signed onto it once.
As a final act of chutzpah, Texas also claims that it cannot be subject to preclearance because “Hispanic citizens in Texas registered to vote at higher rates” than Hispanics in other states not subject to federal supervision under the Voting Rights Act. That very well be true, but it’s also besides the point. The thrust of the Justice Department’s lawsuit is that Texas intentionally drew its district lines so that white votes would count more and Hispanic votes would count less. In other words, the whole purpose of these lines was to make sure that it didn’t matter if Hispanic voters registered at high rates because their voting power would still be diluted by gerrymandering. It’s like a basketball referee claiming that it doesn’t matter that he’s not counting all the points scored by one team because that team is taking more shots.
By: Ian Millhiser, Think Progress, August 9, 2013
“Unnecessarily Handicapped”: The Zimmerman Trial Shows It’s Time To Reconsider The Six-Member Jury
Small juries, like all small samples, carry big costs. Doesn’t a jury in a serious criminal case have 12 members? Not in Florida.
Florida is one of only two states where a jury as small as six can decide a serious felony case. It is the only state where a murder case goes to a six-member jury. And second-degree murder in Florida is serious indeed, carrying a sentence of 25 years to life. The circumstances of the shooting that killed an unarmed teenager, moreover, are sharply disputed, implicating the use of guns, the limits of self-defense and race relations. As we often do, we have given the jury in this case a challenging task.
Why should we care if the jury has six or 12 members? The Sixth Amendment guarantees the right to trial by jury, but it does not specify jury size. When the Sixth Amendment was written, was the number simply assumed? James Madison thought it was: He thought the number was 12.
For almost 200 years, the U.S. Supreme Court consistently accepted this view, defining “jury” to mean the 12-member jury. For instance, in 1930, the court said that “it is not open to question” whether juries may consist of fewer than 12.
In 1970, however, the court reversed its position in Williams v. Florida and found no constitutional objection to Florida’s six-member jury. The court labeled the general use of 12 throughout history as an “historical accident.” The court’s characterization of the historical record has been widely disputed, but even more egregiously, the court joined its new historical assessment with a strikingly inaccurate behavioral claim.
It proclaimed that the behavior of six- and 12-member juries were “functionally” equivalent, and therefore the six-member jury was unobjectionable. In fact, the overwhelming weight of empirical evidence shows that juries of six do not perform as well as juries of 12.
How do six- and 12-member juries differ? Two differences are particularly relevant in the trial of George Zimmerman. First, numerous studies of all kinds show that cutting jury size in half decreases the likelihood that the jury will reflect a representative sample of the community. The lone non-white juror on the George Zimmerman jury is just one instance of that effect. The all-female jury is another.
The gender make-up of the jury cannot be explained merely by the majority female jury pool or attorney use of challenges. A total of 10 jurors was selected, the jury of six and four alternates. Two of the alternates were male. A larger jury that included the additional four would not have been homogeneous on gender.
Ethnicity and gender are not the only dimensions of difference shortchanged by a smaller jury.
Any background or set of beliefs or life experiences that may affect reactions to the evidence is substantially less likely to be represented on a six-member jury than on a 12-member jury. Simply due to chance, unrepresentativeness is more likely when only six jurors are needed to constitute the jury. That loss is particularly troubling when the jurors are evaluating crucial and disputed evidence, like the identity of the voice in the background on the 911 tape in the Zimmerman case.
Second, jury research finds that larger juries spend more time deliberating and their discussions of testimony are more thorough than smaller juries. More vigorous debate reflects the expanded pool of abilities and perspectives provided by the larger jury. Similarly, the ability of dissenters to resist majority pressure is promoted by the increased likelihood that a dissenter whose position is not simply idiosyncratic will have one or more other jurors who share that view. The dissenters might not carry the day, but their views will be more seriously considered.
There is no evidence that jury size is associated with more pro-prosecution or more pro-defense verdicts. Thus, the key here is not that the six-member jury systematically advantages one side or the other. Rather, the point is that a serious charge demands serious procedural consideration.
Even Florida, like every other state with the death penalty, uses a 12-member jury for capital offenses. Second-degree murder does not carry the death penalty in Florida, but it does call for thorough deliberation from a variety of perspectives. The six-member jury is unnecessarily handicapped.
What should be done? Ample empirical evidence on the jury demonstrates the need to reverse course. Perhaps in the wake of the Zimmerman case, Florida will reconsider its unique position on jury size. Even better: In recent years, the Supreme Court has turned down several opportunities to revisit the question of jury size. Perhaps it should accept the next one.
By: Seidman Diamond, The Miami Herald, July 15, 2013
“Wake The Hell Up”: Did George Zimmerman Get Away With Murder?
Four words of advice for African-Americans in the wake of George Zimmerman’s acquittal:
Wake the hell up.
The Sunday after Zimmerman went free was a day of protest for many of us. From Biscayne Boulevard in Miami to Leimert Park in Los Angeles, to the Daley Center in Chicago to Times Square in New York City, African-Americans — and others who believe in racial justice — carried out angry, but mostly peaceful, demonstrations.
Good. This is as it should have been.
But if that’s the end, if you just get it out of your system, then move ahead with business as usual, then all you did Sunday was waste your time. You might as well have stayed home.
We are living in a perilous era for African-American freedom. The parallels to other eras have become too stark to ignore.
Every period of African-American advance has always been met by a crushing period of pushback, the crafting of laws and the use of violence with the intent of eroding the new freedoms. Look it up:
The 13th Amendment ended slavery. So the white South created a convict leasing system that was actually harsher.
The 14th Amendment guaranteed citizenship. So the white South rendered that citizenship meaningless with the imposition of Jim Crow laws.
The 15th Amendment gave us the right to vote; it was taken away by the so-called “grandfather clause.” The Supreme Court struck that down, so the white South relied on literacy tests and poll taxes to snatch our ballots all over again.
Our history is a litany: two steps forward, one step back.
The civil rights movement was the greatest step forward since emancipation. So we ought not be surprised to see voting rights eroded again, the Civil Rights Act attacked, the so-called “war on drugs” used for the mass incarceration of black men. Or to see the killing of an unarmed child deliver a message as old as the Constitution itself: Black life is worth less.
We are in another period of pushback. And worse, we don’t even seem to know.
It feels as if we have taken the great advances of the last half-century — the protective laws, the rise of the black middle class, the winning of the ballot, the flowering of options once considered unthinkable — for granted. It feels as if we have come to regard progress as somehow inevitable, preordained, carved in stone and irrevocable as a birthright.
So yes, we need to wake the hell up.
While we were celebrating, others were calculating.
While we were writing nasty rap lyrics, they were writing senators.
While we were organizing Obama victory parties, they were organizing Tea Parties.
While we were buying DVDs, they were buying candidates.
While we were sending texts, they were building propaganda machinery.
While we were resting on the past, they were seizing the future.
Granted, the preceding casts a wide net. Yes, there are many of us, African-Americans and others, who don’t need the admonition, who are already awake, who have always been awake. More power to them.
But there are also many of us still sleeping. So let Trayvon Martin’s death and the acquittal of his killer be a wake-up call. Let it be a spur to stop reacting and start pro-acting. Let it be a goad to become better informed. Let it be a reminder to organize. Let it be a reason to send a check to the NAACP. Let it be an incentive to join the social justice ministry at church. Let it be cause to write your congressperson. Let it be an impetus to teach and nurture your kids.
Most of all, let it be an alarm clock, ringing in the darkness of a new morning, calling conscience to account. Do not waste this moment. The time for sleeping is done.
By: Leonard Pitts, Jr., The National Memo, July 17, 2013
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