(Darryl) Levinson thesis

[Chambers, Henry]

Part of the issue is: What transforms an insistence on unlimited debate
into a filibuster? 

 

Cloture ends a senator's right (and the Senate's right) to unlimited
debate.  If all of the members of the Senate (or any body) valued
unlimited debate - defined broadly as debate until everyone has had his
or her full say on the issue - and were fair-minded, it might be
sensible to allow a bare majority to cut off debate once a majority
could agree that everyone really had had their full say on an issue.
However, ending unlimited debate in the real-world Senate should require
a supermajority, lest a bare (and bare-knuckled) majority cut off debate
as soon as they felt they had heard enough about an issue. 

 

Senate Democrats should ignore talk of a filibuster and focus on
exercising their right to unlimited debate.  As long as the
debate/speeches actually focuses on Judge Alito and his appointment
(broadly construed), an insistence on unlimited (relevant) debate can
hardly be called a filibuster.  Judge Alito has 15 years on the bench.
A discussion of his record could last a while.  

 

The question becomes: At what point does the public believe it is fair
for a bare Senate majority to tell a substantial Senate minority that it
must sit down, shut up and vote on Judge Alito?

 

If extended debate moves the public away from Judge Alito, it could
continue; if not (for whatever reason, including public apathy), Senate
Democrats should describe what America will get with a Justice Alito,
tell the people to go to the polls in 2006 to express their view if they
do not like what they see. . .then sit down.

 

-Hank        

 

Henry L. Chambers, Jr., Professor of Law

University of Richmond School of Law

28 Westhampton Way

Richmond, VA 23173

804-289-8199

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Friday, January 20, 2006 9:47 AM
To: SLevinson at law.utexas.edu
Cc: LawCourts-L at usc.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: (Darryl) Levinson thesis

 

        What would be the benefit for the Democrats to push the nuclear
option? It is a matter of principle irrespective of the consequences?

 

        As someone who grew up in an era when Southern democrats used
the filibuster in disgraceful ways, I have a deeply entrenched, visceral
reaction against it? Okay, such reactions should not be dispositive if
there are advantages to filibustering.  But how would this play out with
the public. Preventing an "up or down" vote triggers--justifiably or
not--a reaction of unfairness. Changing the rules of the Senate--if
that's what the nuclear reaction is--will not or at least it's a much
harder sell to convince the public that it isn't warranted in light of
the Democrat's preventing the vote.

 

        So what benefits accrue for the Democrats and/or for the nation
by using the filibuster?

 

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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