US Constitution from "horse and buggy era"

So says Associate Justice of the Supreme Court Elena Kagan, in the SCOTUS case about presidential recess appointments.

Kagan said the clause may be a “historic relic” from “the horse and buggy era,” when presidents needed the authority to fill vacancies because lawmakers were out of town and could not return on short notice. More recently, she said, presidents of both parties have used the appointment power “as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the president thinks ought to be approved.”

She suggested that the new use of the clause was problematic.

Justice Stephen G. Breyer said he had scoured the historical and legal materials. “I can’t find anything,” he said, “that says the purpose of this clause has anything at all to do with political fights between Congress and the president.”

The problem of congressional absence no longer exists, Justice Ruth Bader Ginsburg said. “The Senate — I think to be candid — the Senate is always available,” she said. “They can be called back on very short notice.”

Partisan politics aside, yes, Kagan is right that recess appointments are from the horse and buggy era. Yeah, the entire body of our constitution is. So's every amendment before the 16th. Tell that to Scalia and his moronic "originalism." Doorknob, I wish more Americans in general would stop worshiping the body part of our constitution like holy writ. It's not. It's not even close. It's hopelessly anachronistic in today's era of computers and nuclear weapons.

Solutions? I'd love to scrap a lot of it, but given today's climate, amending the constitution would draw Tea Party nonsense enough to stuff a room to the raptors. We've already heard plenty of Tea Party talk about junking the 17th Amendment and direct election of U.S. Senators. 

And, partisan politics not aside, per SCOTUSblog, Obama's going to lose this one. Because, per Lyle Denniston, the Senate controls when it's in session or not, as notes the Chief, John Roberts, its power to confirm or block presidential appointments is absolute. And, I really don't see five Justices finding a non-originalist interpretation to preserve some degree of presidential recess appointment power for the world of the 21st century. I hate to think this, because a purely partisan action by Senate Republicans brought us to this point, but on the letter of the law, Obama doesn't have a leg to stand on.

On the spirit of the constitution? Depends on whether your spirit is originalist, or even close. Frankly, this is one of those era where horse and buggy is so far away from today, reflecting Frederick the Great's doubt that the US would survive, that I don't see how constitutional scholars can agree on a non-originalist interpretation.

Solution? Parliamentary government, of course, with a relatively disempowered Senate, and a prime minister and cabinet officials as part of the House. Add in electing part of the House off a national list, like Germany and others, so as to get third parties into the House, and there you go.

Chances of getting adopted? The same as Sarah Palin outing herself as a lesbian who had a threesome with both Mary and Liz Cheney.

Minor tweak? Now that Harry Reid's curtailed the filibuster, a Senate majority can always take the next step, and control Senate rules on exactly how a recess is defined, and do its best to kill the phantom recess.

Harry Reid trumps a 5-year Kumbaya chorus

I'm not a total fan of Senate Majority Leader Harry Reid. He can still be in the pocket of hardrock miners in Nevada too much, and I'm still not sure just how liberal he is on socioeconomic issues.

But, I know he's less of a neoliberal, or seems to be, than Preznit Kumbaya, aka Dear Leader, aka President Barack Obama. And, he's certainly not in any special love with any mythical mellifluousness of his voice. 

First, the end of the filibustering of district and circuit court nominees was needed, period. Republicans, who talk about the poor as thieving criminals, were stealing not just one and a half loaves, but 3 or 4 loaves compared to the agreement to take the possible "nuclear option" off the table in Shrub Bush's presidency.

Second, anything that makes John McCain whine, exposes his hypocrisy, and catches his tail in a vice halfway between hardcore conservative and true nutbar is fine by me.

Let's read the Schmuck Talk Express™:

"They're governed by the newer members... who have never been in a minority, who are primarily driving this issue," McCain told reporters after the vote. "They succeeded and they will pay a very, very heavy price for it."

Really? Harry Reid's been around as long as you have, John.

See, what this is, is what psychologists call "projection." Here's what McCain was actually saying:

"(House Republicans are) governed by the newer members... who have never been in a minority, who are primarily driving this issue," McCain told reporters after the vote. "They succeeded (in the government shutdown) and they will pay a very, very heavy price for it."

Glad I could translate, Schmuck Talk.

Third, the Senate GOP had become the party of obstruction and obstruction, with young turks there finding a willing ally in Yertle the Turtle, Minority Leader Mitch McConnell.

Reid pointed that out shortly before the denouement:

On the Senate floor Thursday morning, Reid pointed out that half of the 168 filibusters of executive and judicial nominees in American history have come during the Obama Administration. "These nominees deserve at least an up-or-down vote," Reid said. "But Republican filibusters deny them a fair vote and deny the president his team.

Half. Period. End of story.

The Atlantic notes that Reid and McConnell don't really like each other, but both have been in the Senate long enough to try patchwork fixes. But, McConnell either couldn't or wouldn't do more.

And, that's important related to this. McConnell has long crowed about his knowledge of Senate parliamentary procedure arcana, and Reid just trumped him. My take is Yertle wouldn't do more, rather

Fourth, we know Reid squeezed Vice President Joe Biden out of the picture on government shutdown talks earlier this fall. Per my Photoshopped caption, he just put Dear Leader on notice, I think, that he will play the same hardball tactics, or worse, come next year. Reid finally decided, in the Chicago language and mannerisms that Obama is allegedly supposed to understand and practice, that it was time to bring a gun to a gunfight. McCain, in negotiations, brought an inadequate counteroffer, or a water pistol, if you will.

As for long-term ramifications? Well, the GOP needs to do more work on getting its Ted Cruzes and other knucklewalkers in line. Because, if the inside-the-Beltway take is correct on how this will make the GOP madder, I think Reid is ready to fire back.

Maybe Harry can even dissuade Dear Leader from chained CPI for entitlements and other nuttery of his Catfood Commission.

Or, I hope, get the Democratic Senatorial Campaign Committee to find people to "primary" Carl Levin, Joe Manchin, and Mark Pryor.

Jon Chait, filibuster, #Obamiacs and the reality-based community?

Remember when Democrats, riffing on Karl Rove and his minions, said they were the "reality-based community"?

Well, top Obamiac fellator Jon Chait once again proves that's not true.

His latest malfeasance? Crowing over the deal in the Senate where Majority Leader Harry Reid and Minority Leader Mitch McConnell agreed that the Senate GOP would stop filibustering a pack of Obama nominees in exchange for the Senate not doing a "nuclear option" and entirely killing the filibuster.

Here's his first teh wrong:

Democrats had proposed to change the Senate’s rules to prevent filibusters on executive branch nominations (but not to ban filibusters of legislation or judicial nominees). They’ve won.

Nope. No win. Obama still has multiple DC Circuit Court nominees in limbo. And Reid couldn't even get an agreement to force an actual Wendy Davis-style filibuster.

Then there's this:

Republicans got one face-saving concession: Democrats have to pick new names for the NLRB. This became an issue because Obama tried to execute an end-run around Congress by appointing them to their positions when Congress was functionally, though not technically, in recess, and was struck down by the Republican-controlled D.C. circuit court. 

As at least one labor group makes clear, this isn't a "face-saving concession." Instead, the Turtle had ramped up the whole idea of the "not in recess" recess precisely for this reason. Instead, this is a clear cave for Dear Leader.

Of course, even that's not the stupidist Jon Chait-ism. This is:

The deal was brokered by John McCain, who undercut McConnell and is fully emerging, yet again, as his old centrist self.

Wow, McCain a "centrist." Only in Jon Chait's Obama Happy Meal world.

John McCain a fucking centrist. Now I've heard it all.

Once again, IOKIYAO to spout this bullshit.

It's this same Beltway-based (yes, he's in NYC, I know) mentality of politics as chess game, and Dear Leader allegedly being the master of 11-dimensional chess (NOT) that I loathe. It's the same thinking that led Daily Kos founder Markos Moulitsas to put personalities, followed by personal victories, over policy victories.

Gun control dead: whose fault? Obama and Reid, not just GOP

Sure, sure, sure, it's easy to fault the Senate GOP for the key element in planned new gun control legislation being as dead as a doorknob by failing cloture.

But that's more than too easy by half.

The real villians are, as should surprise no truly smart-minded person, Barack Obama with his wingman on this one, Harry Reid.

Obama? As I noted about his big post-Newtown speech, could have been addressing half this issue over four years. You don't need an ATF director (even if he didn't try to get one appointed for four years) to step up arrests and prosecutions on gun buys that are already illegal (even if the Republicans are blocking your judicial appointments).

Beyond that, with a massive White House social media operation, a massive White House website with its petition-generating software and more, Obama's vaunted Organizing for America (itself a neoliberal sellout) and its alleged skill in microtargeting during the 2012 election, and you can't bust gun nuts in the chops on Facebook, Twitter, etc.? You can't get OFA to help with astroturfing letters to the editor to more conservative papers? And, you can't get Dear Leader to better target his in-person presence outside of the Rose Garden?

Pathetic. Did the Newtown survivors not have enough money for OFA?

Beyond that, if Joe Biden supposedly deals with the GOP so well, why wasn't he being used more on this issue?

Harry Reid? As I've said repeatedly, in a crude pun, Harry Reid has no Harry Balls. His sellout on filibuster reform, which I blogged about here, is typical. All that "cots and pillows" talk? That's for mainstream Democrats lured to sleep.

But yet, while rightfully focusing their anger on Republicans in general and the Senate GOP in particular, mainstream Democrats will likely stop there.

And, in so doing, given Batman and Robin another pass.

And, I've said this one before, too.

Enabling such behavior is like a spouse/lover/family member "enabling" the behavior of an alcoholic or addict. Period.

And, for a man who won two presidential elections, he can't play 3-dimensional political chess, let alone the 11-dimensional kind. Or else, if four years of reports of "diffidence" are correct, doesn't want to.

Fine. Resign. Let JoePa Biden be the Prez. He might be better.

Harry Reid is still no Harry Balls

Don't believe Senate Majority Leader Harry Reid's latest huffing and puffing about "nuclear option" if the Senate GOP keeps "filibustering" judicial nominations of President Obama.

He, at the start of setting chamber rules at the start of this year's Senate, just like Dear Leader with the sequester (Bush Obama tax cuts, "fill in the blank"), had the exact measure of his opposition in front of him. Both he and Dear Leader caved.

It's all kabuki. Throw in a use or two of "respecting the traditions of the Senate," an incantation or two of "world's greatest deliberative body," and nothing's happening.

Well, not quite true.

If you've donated/contributed before, you'll be getting a mailing, or an emailing, soon from the Democratic Senatorial Campaign Committee, asking for your support in fighting the filibusterers.

Harry Reid, Nary Balls

Why do people now say that Senate Majority Leader Harry Reid is going to further change Senate filibuster rules?

The Senate GOP hasn't changed its stripes since the start of the term, when Harry the Ballless passed on making substantive changes when it would have been relatively easy to do so.

But, neolib-type Obamiac/Democratiac folks like Talking Points Memo bring up this tired old song again.

So, Harry Reid, Dick "Dick" Durbin, et al? Fool the Obamiac/Democratiac types once ... keep on trying, I guess!

And, TPM in general moved from too much old-time blog to too much online newspaper without an op-ed section. That said, is Josh Marshall still running gushing posts of slideshows from official White House photography?

Is filibuster reform just around the corner?

Could the filibuster finally get reformed? Senate Democrats made a unanimous noise in that direction, with the exception of the none-too-soon departing Chris "Housing Stud" Dodd.

Among the chief revisions that Democrats say will likely be offered: Senators could not initiate a filibuster of a bill before it reaches the floor unless they first muster 40 votes for it, and they would have to remain on the floor to sustain it. That is a change from current rules, which require the majority leader to file a cloture motion to overcome an anonymous objection to a motion to proceed, and then wait 30 hours for a vote on it.

Secret "holds" also could be eliminated under the proposed changes in Senate procedures. Holds would still be allowed, but not in private.

Boy, Harry Reid has had as successful a lame-duck session in terms of political skills as Obama has, arguably. Does he want to roll the dice Jan. 5?

That said, it's ultimately not Reid's call; he's not the Speaker of the Senate. And, IIRC, to the best of my knowledge, the man who is the presiding officer, Vice President Joe Biden, has never been "warm" about such reforms. With a smaller Democratic majority this time around, too, it could be hard to do.

And, outside of a Mark Udall, a Jeff Merkley and a Tom Harkin, where the hell were the rest of you 23 months ago?

Update, Dec. 24: Merkley speaks with Ezra Klein about his "modest proposal." Near the end, he notes that without the current pseudo-filibustering, Obamacare would have been four separate bills.

Surely, on at least one of those four parts, moderate Republicans might have been able to get changes they didn't to an omnibus bill. Hence, they're occasionally shooting themselves in the foot.

Immigration, health care and reconciliation

So, Lindsey Graham thinks he has a good immigration bill but, in essence, is holding GOP support for it hostage to Democrats' possible Senate use of reconciliation procedures to pass a health care bill.

And Graham is supposed to be a "sensible" conservative?

Besides, co-sponsor Chuck Schumer already can't get any GOP sponsors besides Graham. The refusal of whites in the Texas GOP to even vote for Hispanics of their own party, here at the state level, is emblematic, eh?

That said, is the bill really that good?

While it may toughen up border security, it appears to have some sort of "amnesty" without using that word, while also launching a guest worker program.

I'm in favor of "tagging" those already here illegally, to give them first shot at such guest worker jobs, after they're already deported, though. And only with that.

I also think we need to put an automatic COLA on the minimum wage to encourage more of these jobs to be filled by citizens first.

Demand real filibusters in Senate

As this column notes, if you get rid of "dual tracking" in the Senate, a real filibuster would actually grind the Senate to a halt, and a smart Democrat could then pull a page from Harry Truman's playbook.

What does a 'Senator Franken' mean in the Senate?

Now that former U.S. Senator Norm Coleman of Minnesota has officially conceded the 2008 election and its legal challenges, which the Minnesota Supreme Court rejected earlier today, to Al Franken, now what?

(And, not, now what, on an election certificate. Gov. Tim Pawlenty would be a Grade A liar if he did not sign one.)

No, not that.

What does any of this mean on a practical level? Not quite as much as many would crack it up to mean.

First, just because you have 58 Democrats, plus two generally supportive independents, doesn’t guarantee cloture. Cloture is something decided on a bill-by-bill, even amendment-by-amendment basis.

Let’s look at a few key issues.

National healthcare? Party-swapping Arlen Specter might vote against cloture, based on opposition to the bill by unions. (In addition to Hagen or Ben Nelson possibly doing that, of course.)

Waxman-Markey? Stabenow might vote against cloture to protect the Formerly Big Three.

EFCA, if it ever gets to the Senate? Nelson or Hagen are obvious cloture-opposition potential.

Foreign policy? Joementum is a guarantee not only to vote against cloture, but take a neocon stance, on anything in the Middle East.

Beyond that, Sen. Franken's level of influence is dependent on what sort of legislative shepherding leadership President Barack Obama and Chief of Staff Rahm Emanuel display.

Arlen Specter now a Dem – sort of; GOP stunned

Does Pennsylvania Sen. Arlen Specter even know his own self?

A month AFTER saying he would vote against the Employee Free Choice Act, damn the union pressure, NOW, he says he’s changing parties and becoming a Democrat Well, sort of, perhaps.

Specter would be the 59th GOP Senator, increasing the move to seat Al Franken from Minnesota as soon as possible.

But, hold the phone. Specter says he’s not a guaranteed 60th vote for closure.

So, if he’s not a guaranteed vote, how much did Majority Leader Harry Reid, et al, “pay” him in terms of committee assignments to switch? The negotiations have been going on for some time.

Sen. Olympia Snowe (R-Maine), a fellow moderate, didn’t seem surprised. On the national level, she says, “you haven't certainly heard warm encouraging words of how [the GOP] views moderates. Either you are with us or against us.

“Ultimately we’re heading to having the smallest political tent in history they way things are unfolding. We should have learned from the 2006 election, which I was a party of. I happened to win with 74 percent of the vote in a blue-collar state, but no one asked me, ‘How did you do it?’ Seems to me that would have been the first question that would have come from the Republican Party to find out so we could avoid further losses.”

If she wasn’t surprised, non-moderate top dogs in the GOP Senate structure were totally surprised, including Texas’ often-clueless John Cornyn, the man responsible for getting more GOP senators elected.

Maybe they should have been, especially since switch negotiations had been ongoing, and they had the Jim Jeffords example from the start of this decade.

Specter offers more insight on his switch.

Since my election in 1980, as part of the Reagan Big Tent, the Republican Party has moved far to the right. Last year, more than 200,000 Republicans in Pennsylvania changed their registration to become Democrats. I now find my political philosophy more in line with Democrats than Republicans.

So, why didn’t Specter do the “independent” route, like Jeffords or Joe Lieberman?

Well, for one thing, they did it not too long after being re-elected, not in the face of an election. Jeffords has retired, and Joementum? We’ll see in four years.

As for Specter and the Democratic Party? Former Constitution Center CEO Joe Torsella, the one announced Democrat in the Senate race, said that he would remain in the Democratic primary against Specter for now.

Meanwhile, will somebody besides Pat Toomey enter the GOP primary? Surely. How many somebodies, and how moderate they are, remains to be seen.

So much for FISA filibusters, eh? Where was Feingold?

Contrary to GOP threats of filibustering, it’s been a long time since we’ve had a Senator actually, individually, filibuster a bill. Well, all his high talk aside, even Russ Feingold apparently decided he didn’t want to add a page to Senate history books.

”This president broke the law,” Feingold said.

Then, why didn’t you filibuster?

In an anticlimactic final vote, the FISA amendment debasement bill sailed through the Senate after Chris Dodd’s “strip the immunity” amendment to it failed to get even 35 votes. Arlen Specter’s proposal to have district courts address the legality issue before granting immunity got 37 votes, and Jeff Bingaman’s proposal to delay immunity for a year-long investigation (which nobody wants in a presidential election year) got 42 votes.

Couple the FISA cave with Bush’s refusal to approve Passive Pelosi™’s nomination to a new government civil liberties board, and the Irony alert and Hypocrisy alert confluence is huge.

Not approved?

Morton Halperin, a veteran and sometimes controversial civil liberties advocate who has a famous role in the history of modern debates over government wiretapping.