FILIBUSTERS, TPA, AND FRAMERS' INTENT

How can a filibuster of judicial nominees be unconstitutional while TPA is not? In response to this post, Jim Joyner (here and here) and Steven Taylor (here) discuss TPA and filibusters; Jim wants to concede that TPA is unconstitutional while noting in the comments that sometimes practical considerations require a deviation from the strict letter of the Constitution, and Steven wants to preserve a distinction between executive agreements and treaties and thus save the boat. Jim also digs up the Senate's website on treaties and executive agreements, which details quite frankly how the rise of executive agreements was a response to the difficulties of getting treaties past the Article II, Section 2 supermajority requirement. The numbers are staggering: between 1946 and 1972, only 6.2% of international agreements were ratified as treaties, and the number of agreements (rather than treaties) has skyrocketed since then.

I should note that I first heard about this issue through Ackerman and Golove's book, Is NAFTA Constitutional? They ultimately conclude that the use of executive agreements is, in fact, constitutional, but their understanding of constitutional change outside of constitutional amendment should be anathema to those who advocate what is popularly known as "strict construction," which -- whatever it is -- seems to be at least the mantle of interpretive authority used by most of those challenging the use of the filibuster for judicial nominations. In toward the end of the hearing in the Senate Rules Committee last week (linked here), Senator Trent Lott said something along the lines that he was just reading Article II, Section 2, and saw a supermajority requirement for treaties but not for nominees, and how, then, can it be that the Senate could add a supermajority requirement through a filibuster? This argument has been repeated by lots of people, including folks at Cato, Senator and former Texas AG John Cornyn (who calls filibusters of judicial nominees "uniquely offensive to the nation's constitutional design"), the Christian Broadcast Network, Senator Mitch McConnell, George Will (and the folks at Powerline), and Rush Limbaugh and his ilk (can't find a quote, though).

If the Senate can effectively delete a supermajority requirement for treaties by creating a whole new category that is subject to majority requirements instead (effectively killing the Senate's antimajoritarian, high-transaction-cost-imposing check on the President as chief diplomat), then I see no reason from the start why Senators can't also effectively alter the nominations clause, as the Republicans have described it. I'm not sure that Dems have done this, but let's assume that the Reps are right anyway for the purposes of argument and see a defense of TPA under Article II, Section 2. You can draw a distinction between adding to and subtracting from Senate power, but as soon as you do that, you have stepped away from the first pass at the hollowed ground of "Founders' intent" and moved in the direction of expediency, functional accounts, and, well, politics. That's fine with me. But it should also shift the debate away from the thunderous invocations of original intent we've seen on occasion in this debate, however rhetorically and emotionally satisfying such pronouncements might be, and however much they may appeal to a presumed simplistic constitutional patriotism of voters.