I've written before about the school voucher program that's been proposed for Washington DC, and as of today it's one step closer to reality. Obviously, I'm in favor of the idea; vouchers are possibly the only way to reinvigorate our public education system, because they put it in in competition with private education. Competition forces everyone to improve, and along with some (hopefully minimal) regulations, I expect the program to be a resounding success.

That is, if the Senate passes it. You see, the Congress has direct control over what goes on in the Capital, and although the House has just passed a version of the bill, the Democrats in the Senate are threatening a filibuster. Surprisingly, there are at least two prominent Democrat Senators who are in favor of the program:

The Senate Appropriations Committee approved the measure Thursday by a party-line 16 to 12 vote, though Sen. Dianne Feinstein, D-Calif., a longtime voucher opponent, joined Sen. Robert C. Byrd, D-W.Va., in crossing over and supporting the provision.

Senate Democrats hope to kill the measure on the Senate floor with a filibuster.

It's hardly a "party-line vote" when a quarter of the Democrats on the committee break ranks, but whatever.

The Democrats' filibuster fall-back is getting to be quite annoying, isn't it? More than that, there is some brewing controversy over the constitutionality of the filibuster used as a device to permanently block majority rule in the Senate, particularly in executive contexts, such as approving Presidential nominees.

This is not to say that all filibusters raise constitutional questions. There is a long history of their use in the legislative context, and they can serve a legitimate purpose by not foreclosing debate on legislation prematurely. But in the executive context, when presidential appointments are at issue, filibustering appellate nominees is an unprecedented, though still not necessarily unconstitutional, step. If employed merely to guarantee a reasonable and limited period of debate before proceeding to an up or down vote, a brief filibuster might pass constitutional muster. But in the cases of Estrada and Owen, when the filibuster is being used not to debate, but to kill their nominations by denying the majority its right to consent to them, serious constitutional issues arise.

Yes, the Constitution permits the Senate to set its own rules. But that is hardly a blank check entitling the Senate to amend the Appointments Clause by raising the confirmation bar from simple majority to super majority, to aggrandize power by upsetting the balance between the congressional and the executive branches, and to threaten the independence of the third branch, the federal judiciary. The conclusion is inescapable. Whenever Senate Democrats, a minority of the body, filibuster judicial nominations, obstruct an up or down vote, and deny the majority its right to consent to the appointments, they subvert the Constitution.

I'm not sure why I thought 2 was a quarter of 14...?



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