Filibustering presidential appointments

Bob Sheridan bobsheridan at
Thu Jun 2 21:22:13 PDT 2005

Sanford Levinson wrote:


If in fact one thinks it's legitmate to filibuster judicial nominees, then why isn't it
equally legitimate to filibuster appointees to "independent agencies"? ..."


Nice questions, but is that really how the world works in practice?  

We're talking power here, the exercise of it.

The president appoints, as an exercise in power.  He does what he thinks he can.

Filibuster?  Court challenge?  Unseat a leader? Run an opposing candidate?  Those are exercises in power, not reason, and we don't ask why.  We know why.

We ask how.

A point that I try to make, in class, is not to look for justice when the exercise is of power.  Helps understand otherwise silly cases.  Reed v. Reed, for example.  See Greenhouse's interesting new volume on Harry Blackmun's Adventures in the Great Sausage Factory.


How about might makes right in politics, unless fettered by law?


>There is a strong argument that the President is entitled to have
>whomever he wants to fill cabinet positions (including, arguendo, the UN
>ambassadorship) because, after all, they are all political appointments
>in the specific sense of legitimately being devoted simply to carrying
>out the President's agenda (for which he is, at least in theory,
>accountable).  Obviously, some of us believe that less deference is due
>to judicial appointees, because of their lifetime character and the
>myth, at least, that they have some function other than pushing the
>party-in-power's agenda.  But where do chairs of "independent agencies"
>fit.  If one is appalled by the replacement of SEC Commissioner
>Donaldson by Rep. Cox (a devotee of Ayn Rand, we are told in tomorrow's
>New York Times), then would it be proper for the Senate Democrats to
>indicate the degree of their displeasure by filibustering the
>nomination.  Or, let me put it a slightly different way:  If in fact one
>thinks it's legitmate to filibuster judicial nominees, then why isn't it
>equally legitimate to filibuster appointees to "independent agencies"?
>I mean this as a serious question, because I do begin with the
>presumption that presidents are entitled to pick (and have confirmed)
>whom they want for cabinet positions save for truly "exceptional
>circumstances."  (One might ultimately ask the same question about Alan
>Greenspan's successor:  I.e., should the standard be "unless something
>truly exceptional turns up" or "do we really trust this person to
>exercise the enormous discretion he/she will have responsibly, which
>means, among other things, that one thinks of something other than
>furthering the president's agenda"?)
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