Thursday, May 19, 2005

The Real Senate Majority Party and Judicial Confirmation

If the GOP received less votes for the Senate than the Democrats, why should they get to confirm judges ? Well, because that’s the way our government works, but the question can be pretty effective as a rejoinder to GOP democratic majoritarian arguments for confirming the filibustered nominees. I think though that it still fails even at that.

1. Not all Democratic Senators support the filibuster. It makes sense to count their vote tallies on the other side. The Democratic Senators Nelson of Florida and Nebraska voted for cloture last Congress and switching (or merely removing) their vote totals gives the majority to the anti-filibuster side (Democratic Senators Breaux and Miller also voted for cloture but have since retired) . It remains to be seen whether Senator Salazar will vote for cloture.

2. There is a reason this Democratic argument has been heard only recently even though the filibusters have been going on for quite a while. After the 2002 election, when the filibusters began, the total GOP Senate vote was greater than the total Democratic Senate vote by this measure. If this measure should determine whether these nominees should be approved, they should have already been approved.

3. The votes would probably have come out differently if total Senate votes by party were seen as significant. After all, in the more democratic House and Presidential elections, the GOP racked up a majority of votes. The Democrats racked up landslide Senate victories in New York, Illinois, and California where the GOP did not put up serious opposition. If both parties and voters had felt the Democratic margin of victory in those states important, the margin would probably have been similar to that in the Presidential race. Of course this sort of thing can operate the other way as well. It just didn’t in 2004 to the nearly the same degree.

4. Since Senate elections are staggered, those Senate elections that take place in Presidential election years would be disproportionately represented in this measure. Adjusting for this point, though, would only reduce the Democratic margin, not erase it.


Zev said...

You have made me very happy.

Yehuda said...

Not quite sure I understood all about the filibusters and what not and you link didn't work. But welcome aboard! Glad to see you joined up.

You see, helping me move paid off in the end.

Zev said...

Firstly, are there any Republican senators that might swing against cloture? Your method of defense seems telling. You reduce the issue to "who *really* has the majority" (which I understand you do in contrast to other democrat "majoritarian" arguments). I think you perfectly highlight here how difficult it is to acertain what a majority really is. You speculate that the results for senate could have possibly been altered if rebuplicans had cared about boosting their numbers in NY and CA. Granted. But maybe the converse could have applied as well. In general (and to my knowledge, never) has the country gone to a referendum, even for really important issues. That would be most democratic--if we believe in democracy. But we don't beleive in perfect representative democracy, we believe in something that approaches that plus some meritocracy/orligarchy. Not a bad thing, mind you, but rarely do the lower segments of society run for office (let alone vote). So elections are not *truly* representative. This sort of reductive reasoning can go on a while, but my point is that this is exactly when the fillibuster is needed, to act as just one more balance this unbalanced system. If, theoretically, the democrats did have 75% popular majority and only a 49% representation the fillibuster exists to even out the playing field and make it more liberal and democratic. You are right, however, that the largest part of this problem is that judges have lifetime tenure. If they did not, I would not have such a big problem getting rid of the fillibuster forthis executive power. I assume you will grill me on this last line, but the commnet has gone on long enough.

Shmuli said...

1. Last Congress every GOP Senator voted for cloture. I don't know about the coming vote, only about those last Congress. Furthermore, Senator Landriue had won re-election in 2002 with her campaign saying she would support Estrada and then flipped immediately after re-election. This will probably happen with Senator Salazar now.

2. Since the Senate cannot actually do anything alone, the filibuster also serves to obstruct the Presidency and/or the House, institutions that better reflect popular will.

3. The filibuster rule is neutral toward total Senate votes, so it is true that it can protect the total vote winners. Nevertheless, the net expected outcome is otherwise. Rather than balancing an unbalanced system (from a democratic majoritarian point of view), the filibuster only serves to make it even more unbalanced.