Recess Appointments and Administrative Filibusters

Sanford Levinson SLevinson at law.utexas.edu
Tue Jan 10 15:03:38 PST 2012


Shameless self-promotion:  David Law and I co-authored a piece whose title, presumably, says a lot:  “Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments,” 39 UNIVERSITY OF RICHMOND LAW REVIEW 923-947 (2005).  Briefly, we argue that a) it is totally unclear with whom one would negotiate a détente and b) why one would believe that the deal would stick over time once the détente negotiators no longer occupy office or, for that matter, realize that they now have different incentives than adhering to their agreement.  Unlike nuclear disarmament, in which each side can, in real time, be shown to destroy some of their armaments, it is always the case, with regard to appointments, that one is trading cooperation with "the enemy" today in return for a promise of similar cooperation some years from now.

sandy

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of matthewhpolsci
Sent: Tuesday, January 10, 2012 3:47 PM
To: dlaycock at virginia.edu; CROWLEY at uidaho.edu; conlawprof at lists.ucla.edu
Subject: RE: Recess Appointments and Administrative Filibusters

If there are reasonably good empirical data on the question raised by Professor Laycock I would appreciate seeing them.  The discussion as per Laycock, Crowley, et. al. is about something very important.  There are at least three things in "how to get out of this mess."  (1)  Most eople, most of the time, know very about process and care very little about process, but only whether they are happy with results.  (2)  The media (formerly "the press") have very little reason to offer little for honest clarification (ands sometimes,as in the cases of Hearst and
Ailes) have every reason to provide a cloud of smoky cliches.  (3)  The question of how to "get out of this mess"  pushes back to the Hobbesian problem of "making and maintaining commonwealths."

Concretely, the problem (to take one case) is not whether "the Senate" 
can act, but whether there is a decisive majority and that is a question of where political power lies outside the Senate.


-----Original Message-----
From: Douglas Laycock <dlaycock at virginia.edu>
To: 'Crowley, Donald' <CROWLEY at uidaho.edu>; conlawprof 
<conlawprof at lists.ucla.edu>
Sent: Mon, Jan 9, 2012 11:09 am
Subject: RE: Recess Appointments and Administrative Filibusters

I heard a conclusory report of a poll back in 2009 0r 2010, when the 
Dems had a majority in both houses, indicating that most Americans have 
no idea that it takes 60 votes to do anything in the Senate.  People 
thought the Dems controlled Congress and were responsible for whatever 
happened or didn’t happen.  I dIdn’t see the question or anything else 
about methodology. Douglas LaycockRobert E. Scott Distinguished 
Professor of LawUniversity of Virginia Law School580 Massie 
RoadCharlottesville, VA  22903     434-243-8546
 From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Crowley, Donald
Sent: Friday, January 06, 2012 6:57 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Recess Appointments and Administrative Filibusters

 I don’t think it is much of an exaggeration.  The 111th Congress set a 
record for filibusters and I suspect the 112th will break that.  The 
media usually doesn’t even bother to point out that a bill is being 
filibustered by casually reporting votes with comments like “the bill 
failed 55-45” without explaining why a majority didn’t prevail.  NPR 
now routinely says things like “the bill failed to get the required 60 
votes”.   Not only is there no price to engaging in a filibuster but it 
isn’t even noted by major media outlets. Don From: 
conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Renz, Jeff
Sent: Friday, January 06, 2012 2:56 PM
To: conlawprof at lists.ucla.edu
Subject: Recess Appointments and Administrative Filibusters

 Are we approaching one of those constitutional crises?  The Senate’s 
increasing use of the administrative filibuster (my term) under which 
actual debate does not take place has been used to frustrate the 
executive’s exercise of power regardless of who was President.  As Lou 
Fisher alluded, there is no price to pay for engaging in a 
filibuster. I was told, by a very reliable source in the White House, 
that President Obama’s initiatives and appointments had been 
filibustered out of proportion to any of his predecessors.  I think 
that the observation was “as many as all prior presidents combined,” 
and I treat that as a small exaggeration. Does anyone know what the 
total has been and how it compares? If the Congress cannot govern under 
a rule that requires a super-majority but no accountability for 
demanding a super-majority, and if the Executive cannot govern by 
reason of the legislature’s minority exploitation of the legislature’s 
rule that requires an accountability-free super-majority, how do we 
find our way out of this mess? Jeffrey RenzClinical Professor of 
LawSchool of LawFaculty, Central and Southwest Asian Studies CenterThe 
University of MontanaMissoula, MT  
59812406-243-5127  _______________________________________________
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