BEING FAIR TO REPUBLICANS

One response to the argument in this post took issue with my characterization of Senate Republicans as being driven primarily by immediate partisan advantage rather than a considered sense of their constitutional responsibility. And over the weekend, in response to my argument, one friend noted that Senators (and others) who object to the filibuster may not be all that happy with trade promotion authority, either.

These are fair arguments. Let me be clear: my interest is in the rhetoric of constitutional discourse; my own narrow research interests are focused on the structure of constitutional discourse with respect to the public. In this particular context, let me state my claim as a thesis: it should be hard, as a Senator, to support trade promotion authority and to attack the filibuster, if you try to base your objections on constitutional text and framer's intent, at least in the way proposed by Senate Republicans. I haven't lined up the votes exactly, but the roll call vote on August 1 of last year on trade promotion authority includes mostly Republicans in the "yea" column, and these are the same people who now are so scrupulous in interpreting Article II, Section 2's differences between Senatorial treatment of treaties (supermajority required) and treatment of nominees (majority implied, perhaps, but not stated).

I'm not arguing that Senators don't care about the Senate. I am arguing that the kinds of constitutional arguments that have been made by Republicans with such interpretive piety are apparently only persuasive when other considerations intervene. This is not intended as a slight, but as a realistic description of the role of constitutional interpretation in heated political fights such as this one. Constitutional requirements are treated in a realistic fashion -- ignored in TPA because Republican Senators (in a high politics manner -- Balkin is usually talking about judges, but the distinction between high and low politics holds for elected officials as well) like trade and acknowledge the denseness of economic networks in the modern economy and the functional necessity of giving the President a free hand to negotiate trade treaties. Read the bill's praises of the benefits of free trade. Hence they ignore the Article II, Section 2 supermajority requirement. But Republican Senators want to be able to vote in favor of Bush's judicial nominees and want, in this narrowly divided partisan environment, to be able to put people they like on the court, hence they push an Article II, Section 2 argument.

However inconsistent Senate Republicans are being with respect to the bindingness of Article II, Section 2 Senate voting rules, they are being consistent in three ways. First, in both TPA and the nominations, they are supporting a President of their own party who shares their policy goals. Secondly, in both they are arguing for majority rule as a principle -- understandable in a narrowly divided partisan environment if you assume short time frames. Thirdly, they are being realistic with respect to the function of constitutional requirements, viewing them as to be read in context with broader political considerations.

And by the way, the Senate Rules Committee hearing on the nominations filibuster is really, really interesting. Here's the link (via How Appealing)