Majority Rule Redux

An extension of unemployment benefits failed yesterday, because it is supported by a mere 57% of Senators.

I don't pretend to know whether extending unemployment benefits is really a good idea or not. Paul Krugman keeps saying that we need more of just this kind of government spending now, and he's got a Nobel prize in economics, so I'm inclined to agree with him. But it is at least a priori possible that we have reached the point where it's time to worry more about the deficit than about the recovery, and deciding which side is right is not my area of expertise.

But what I do know is this: our political system is broken, and the filibuster rule in the Senate is the chief culprit.

It's absurd that something supported by 57% of our elected representatives can't get legislatively passed. These days, if an individual candidate gets 57% of the vote in an election, that's a big, solid win. So why can't policies supported by 57% of our elected representatives get enacted?

Health care reform, ultimately enacted with the aid of the Senate's "reconciliation" rule (which doesn't permit filibusters), showed how efficient Congress can be when it isn't bound by an absurd supermajority requirement. The House of Representatives passed a series of fixes to the health care reform bill, the Senate (by a healthy 56-43 majority) adopted them with just a couple of tiny changes, and the House agreed to the changes -- all within a week!

Imagine where we could be if the Senate needed only a majority to pass any legislation. Not just these unemployment benefits, but financial reform, climate change legislation, energy policy reform, and probably even immigration reform could all be accomplished already.

Maybe Congress would enact good legislation, maybe not. Things could be a lot better because Harry Reid wouldn't have to agree to outrageous special deals to buy those last few votes. Things could be worse because the majority would go out of control. But things would get done. And if the people didn't like what got done, they could vote for someone else. That's got to be better than what we have now.

Maybe filibusters made sense at some earlier stage in our nation's history. They might have been OK in past days when there was a gentlemen's agreement to use filibusters only on occasions of great moment. But now that they are used every day, on every kind of legislation or nomination, they are a fatal impediment to basic governance. The filibuster rule must go.

Should Kagan Talk?

Lots of buzz lately about whether Elena Kagan, President Obama's choice to fill Justice Stevens's Supreme Court seat, should or will actually answer questions during her Senate hearings, or whether she will follow the example of recent nominees and pretty much stonewall everything. Some commentators have enjoyed pointing out that Kagan herself has stated that "the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct." So it might seem that she should be particularly subject to substantive questioning.

Supreme Court confirmation hearings have become a game in which nominees display their skill at avoiding substantive questions. It's a little peculiar. The expressed reason is usually that the nominee doesn't want to "prejudge the issue." It is thought unseemly that the nominee should commit herself to voting a particular way on an issue that is likely to come before her as a judge. But if that is the case, what do we do with actual judges and Justices who have, many times over, committed themselves to voting particular ways on particular issues that come before them? Every Justice who votes on a case is committing himself to voting that way on the same issue the next time around. There's no need to wonder how Justice Scalia or Justice Breyer will vote on the question of whether Congress can abrogate state sovereign immunity; they've both expressed their views on this issue very clearly. Should they be kicked off the Supreme Court? Obviously that's not how it works.

A better reason for a nominee's reluctance to answer questions, I think, should be that they don't know the answer. I remember during Justice Souter's confirmation hearings that a Senator, trying to find some acceptable way to get at the nominee's views on big issues, asked whether the Korean war was constitutional (or perhaps he asked whether it was a "war" in the constitutional sense, I don't remember exactly). Souter declined to answer, citing the usual reasons. But I think a better reason would have been this: look, we don't hire people for the job of Supreme Court Justice because they have the answer to every difficult question written on their shirt cuffs. If that question really arose in real litigation, it would get bandied about in the lower courts for months or even years, parties would make every conceiveable argument on both sides, it would come up to the Supreme Court in a particular context, it would be extensively briefed and argued there, and only then would a Justice be called upon to opine on it.

Justices aren't and shouldn't be expected to know everything instantly. They get to look smart because they make decisions by choosing between outstanding arguments made by smart counsel. I suppose it wouldn't play well on TV if Souter, asked whether the Korean war was constitutional, had said, "oh, I have no idea," but that would probably be a more honest reason for declining to answer. There's a reason why we have an elaborate process for getting answers from the Supreme Court. The questions are hard and the answers should be produced with deliberation.

Specter's Specter

Our nation's capital has been buzzing for some time now about the possibility of Justice Stevens's retirement, and Adam Liptak's piece in the NYT this weekend heightened speculation.

Now Senator Arlen Specter has jumped into the discussion with a suggestion that Justice Stevens wait until next year. A Supreme Court appointment in the current political atmosphere could, Specter fears, produce a filibuster that would tie up the Senate. Next year, he thinks, there would be more chance of reaching consensus on a nominee.

I'm sure Senator Specter knows a lot more about the Senate than I do, and I wouldn't trust my predictions over his about what would happen in that body. But boy, if I were President, I sure would want to send my Supreme Court nominee over to the Senate now, when there are 59 Democrats sitting there, rather than take my chances with the new Senate next year. Who knows how many Democratic Senators there will be then? I'm not as pessimistic about the Democrats' chances in the mid-term elections as some people, but the President's party does typically lose some seats in the mid-terms. Let's say that the choice was between having the Supreme Court appointment in the current, somewhat poisonous political atmosphere, but with 59 Democratic Senators, and waiting until next year, when things might have settled down a bit, but with, let's imagine, only 54 or 55 Democrats in the Senate. If you were President Obama, which would you prefer?

I'll take the former, thanks. I'd rather have more votes, and I also don't think a filibuster of a Supreme Court appointment would really be all that easy. The whole nation pays attention when there's a Supreme Court appointment, and a filibuster would look excessively obstructionist. It would really paint the Republicans as the "party of no" going into the mid-terms.

So while, of course, it's not really a choice that the President can make -- it's up to the Justice to decide whether and when to retire -- if I were President, I would prefer the retirement now. I would say that Senator Specter's fear of total Senate gridlock on this appointment is an overly exaggerated fear -- a bogeyman, if you will. No, a chimera. An apparation? A phantom? Oh, if only there were a good word for it.

Oh No, Majority Rule!

For an example of the rhetorical lengths to which some Senators will go, check out Senator Orrin Hatch's op-ed against the use of "reconciliation" to pass the health care bill. Reconciliation is a technical procedure under which certain kinds of legislation are allowed to pass the Senate with a mere 51 votes -- a majority, in other words. Hatch claims that although this process is attractive because of its limitations on debate, "the Constitution intends the opposite process" -- apparently, one with unlimited debate.

What nonsense. The Constitution doesn't specify procedural rules for either house of Congress; it just provides that "Each House may determine the Rules of its Proceedings." (Art. I, sec. 5) Certainly the Constitution doesn't provide the rule that a minority of either house can prevent that house from taking action. That absurdity results from the Senate's ill-conceived Rule XXII.

The basic assumption of the Constitution, not expressly stated but inherent in the "common Parliamentary law," is that a majority of either house can pass any bill. Hatch is utterly wrong to state that the Constitution "intends" any other process.

And by the way, that's before we even get to the fact that a 60-member supermajority did pass the Senate health care bill in the last session. Apparently the plan is for the House to pass that bill, and then for reconciliation to be used only to modify the plan with purely fiscal details. So while it may be true that the Senate's rules wouldn't permit reconciliation to be used for the whole health care plan, that's not what it's going to be used for.

And in any event, it would be perfectly, 100% constitutional for 51 Senators to vote the entire health care plan through the Senate, if only the Senate's silly rules didn't stand in the way. The Constitution creates enough obstacles to federal legislation, but it didn't create the filibuster rule.

Bunning's Barrings

I understand why Senator Jim Bunning's lone objection to consideration of a measure to extend unemployment benefits is a thorn in the side of Senate Democrats (and some Republicans too). Even though there are ample votes to pass the measure, and even ample votes to block a filibuster on the measure, a long objector can tie the Senate up in knots. As I've explained before, the objection of even one Senator can force a debate and a vote on something, and the debate can end only following a successful cloture vote. And the kicker is that even a successful cloture vote doesn't immediately terminate debate and lead to a vote on the measure under consideration; it just starts a clock of 30 hours of debate, which is then followed by the substantive vote. And it typically takes at least two such votes to pass anything. So without unanimous consent, a single Senator can tie the Senate up for 60 hours of debate, and that's a lot of precious floor time.

But what I don't get is this: if there's really only one Senator objecting, why not just wait until he's off the Senate floor? He can't be on the floor every minute. If the Republicans as a group oppose something, then they can have someone on the floor at all times to object. But if most Republicans are for something, and just one Senator is gumming up the works, then seek unanimous consent when he's not there.

Even if Senate customs require advance notice of unanimous consent requests, fine, give advance notice that unanimous consent will be sought every five minutes -- 100 times a day if necessary. Have 20 different Democratic Senators make the unanimous consent request at their leisure, while Bunning is forced to spend every minute on the floor. I don't think he'll be able to afford to spend that kind of time on the floor indefinitely. Eventually he'll miss one of the requests, and it'll go through.

Hold On

If reports are to be believed, Senator Richard Shelby has placed holds on all of President Obama's currently pending nominees, apparently because he didn't get a couple of earmarks for Alabama.

This kind of behavior is an example of how absurd things are getting in the Senate. It's bad enough that any 41 Senators can block the other 59 from doing just about anything. But a hold allows one Senator to wreak havoc with the Senate's schedule.

One might ask, why doesn't the majority leader simply stop allowing holds? Unlike the 41-Senator filibuster, which at least has a firm basis in the Senate's rules, the "hold" practice is an informal custom. Originally, holds were designed as a courtesy to Senators who had a scheduling conflict with an important vote, but they've metastasized into a constant stalling tactic. So why not stop recognizing them?

The problem is that the Senate does almost everything by unanimous consent. A hold, while not formally recognized in the rules, amounts to a threat to conduct a filibuster, which is recognized. It particularly amounts to a threat not to consent to a unanimous consent request.

So when the majority leader seeks unanimous consent that the Senate vote on a nomination at a particular time, the "holder" can object. Then the majority leader would have to move that the Senate take up the nomination, and that motion could be filibustered. And while the majority leader might easily have the votes to invoke cloture, cloture doesn't result in a vote; it just starts the clock on thirty hours of debate. Then there's a vote. And that's just the vote on the motion to take up the matter. Then another cloture vote is needed to bring debate to a close, following which debate takes another thirty hours. So the "holder" is threatening that if he or she is not appeased, the matter will eat up nearly a whole week of precious Senate calendar time.

So as usual, what is really needed is a fundamental reform of the Senate's rules. The House of Representatives is famous for allowing individual members and the minority party as a whole too little influence on what happens. But the Senate allows too much. One member can tie the whole body up in knots. The result is too much appeasement of minority interests.

Top Story

Today's biggest news? It's the weather in Massachusetts, and it's not good: rain, snow, and cold.

That's bad news for Martha Coakley, and it's just the latest in a string of bad, bad, bad news she's been getting. She's not out of the race, but she needs a big turnout to win, and bad weather depresses turnout. The unbelievable may happen today: a Republican taking over Ted Kennedy's Senate seat.

Does that mean the end of the health care bill? Not exactly. The winner of today's election can't take his or her seat until the election is certified, which should take at least ten days or so. In the meanwhile, Senator Kirk would continue to occupy the seat and vote in the Senate. There's nothing wrong with that; lame ducks always vote in a post-election period.

So even if Brown wins, Democrats would continue to have 60 votes in the Senate for a precious few days, and if they could get the health care bill through during that period, it's a law like any other. But boy, the Republicans would stage the filibuster to end all filibusters. The clock would really mean something.

Would it be dastardly and underhanded for the Democrats to push the health care bill through as fast as possible while Kirk is still in office? I would say no. First, as noted above, lame ducks get to vote until their term is over; that always happens. Second, remember that Democrats have a big majority in the Senate, even if Brown wins! They just wouldn't have enough votes to defeat a filibuster on their own. But as I've observed repeatedly, the filibuster is an absurd impediment to democracy anyway. It's hard for me to see what's so underhanded about saying, "we got a bill through the properly apportioned House of Representatives, and now we'd like to move it through the Senate, where we legitimately control at least 59% of the vote."

It sounds like democracy to me.

Calling Their Bluff

As faithful readers know, I am immersed in exams and not likely to reemerge until after New Year's day. But a little tidbit to keep you entertained meanwhile:

In the Senate debate over health care, it now appears that the Democrats have 60 votes and can pass their bill. But the Republicans are determined to drag matters out by taking every hour the Senate rules allow. And the rules allow a lot: even having 60 votes for cloture doesn't mean that the Senate can immediately end debate and bring something up for a vote. The Senate's infamous Rule XXII provides that after 60 Senators vote for cloture, the matter under debate can still be debated for a further 30 hours before the actual vote.

So counting back from Christmas Eve, Majority Leader Reid figured out that he needed to hold a cloture vote at 1:00 this morning. This led to a lot of debate about who was responsible for dragging good, hardworking Senators, and even ill ones like Senator Byrd, out of their comfortable beds at that unseemly hour. There were a lot of pious objections from Republicans who claimed to want to spare Senator Byrd that discomfort. The Republicans claimed it was all Senator Reid's fault that the vote was at 1:00 am, because only the Majority Leader can schedule votes.

Well, Senator Harkin of Iowa figured out a way to call their bluff. As you can watch here (click on "Mr. Harkin" at 18:30), he sought unanimous consent that the vote be at 9:00 am, but that the time from 1:00 to 9:00 count as part of the 30 hours after cloture. The Republicans objected. So it's clear they're determined to make things as uncomfortable as possible and that it's really they who are forcing the 1:00 am vote. And as Harkin points out, it's all really for naught -- if the Dems have 60 votes, forcing endless hours of debate doesn't really change anything. Nice work, Senator Harkin.

(By the way, C-Span's video library stinks. You can only look at one clip at a time and there's not even a convenient way to link right to the next or previous clip. If you want to see what it should look like, check out the video library at the British Parliament. A single click gets you to an easily viewed tape of the entire day's proceedings.)

Fast Action

The staff of the late Senator Ted Kennedy must archive his materials and close his office within 60 days.

Wow. I certainly understand that the staff of a deceased legislator can't remain on the public payroll indefinitely, and that their only remaining task is to close up the office in an orderly fashion, but 60 days seems like an awfully short time for this case. Senator Kennedy's office presumably has 46 years' worth of records and materials that will need to be dealt with appropriately. The records will be of great value to historians and researchers and they should be archived with care and thoughtfulness, not hastily thrown into a bunch of boxes and put in a warehouse.

I suppose a fair amount of the records are probably archived already, but even so, to close up shop for any office that has been open for 46 years would be a considerable undertaking and I doubt that the staff could really do a proper job in 60 days -- even without considering that everyone's going to be in shock for at least a week or two and that they all need to find new jobs in the same time period.

Fortunately, a little research reveals that the Senate Committee on Rules and Administration has discretion to lengthen the closing period (page 3). Perhaps some extra time could be arranged to reflect the challenge of properly closing this unusual office.

Edward M. Kennedy

Senator Kennedy's request that the Massachusetts legislature change the laws regarding the replacement of Senators from that state turned out to be sadly prescient -- he died last night.

Kennedy's death marks the end of a truly distinguished legislative career. He was second in Senate seniority, having served nearly 47 years, and he had innumerable legislative accomplishments.

My own small remembrance of Senator Kennedy comes from my brief stint as a Legislative Fellow in a Senate office in 2007. Televisions on every desk were always tuned to the Senate floor, and I remember seeing Senator Kennedy speaking -- on health care, I believe -- late one afternoon. I was struck by how different he was from what one would expect from someone who had done the same job for 45 years. Of course, being a Senator is a great job -- at least, it's certainly very different from most jobs -- but still, after 45 years, one might expect that even Senators would find the excitement and interest of floor speeches and other legislative jostling to be somewhat dimmed and to be going through the motions with less than the ferocity they might previously have brought to their work. But not Kennedy. He spoke with passion and fervor, exhorting his colleagues about the importance of the issue for the country. He was fighting with all his might, even after 45 years, and I'm sure he would still be doing so after 50 if he had lived. What a special man.

Replacing Senators

Last week, Senator Ted Kennedy asked Massachusetts lawmakers to change the law governing U.S. Senate vacancies from that state. Currently, Massachusetts law provides that Senate vacancies can be filled only by special election, to be held no earlier than 145 days and no later than 160 days after the vacancy occurs. Kennedy, who is in poor health, is concerned that his death would therefore leave Massachusetts with only one Senator for at least five months -- and those months could contain crucial votes on health care reform, which is one of Kennedy's lifelong passions. So he suggests that the Massachusetts legislature change the law to permit the Governor to fill the vacancy until the special election can occur.

Today the New York Times weighs in against Kennedy's proposal. The Times observes that Senate seats should be filled democratically, not through patronage. Too many Senators, the Times correctly points out, are currently appointed, not elected, because of the departure of many Senators for administration posts (starting, of course, with the President and Vice President). The Times supports altering the Constitution to require that all Senate vacancies be filled by election rather than by appointment (currently, the Seventeenth Amendment leaves this choice up to each state) and opposes Kennedy's proposal.

The Times is wrong and Kennedy is right. The problem with the plethora of current appointed Senators is not the appointments per se, but the fact that so many of them were appointed to fill out the full remaining terms of the Senators who left. Because numerous Senators left for administration posts almost immediately after the 2008 election, their appointed replacements will serve for nearly two years before the voters get their say. That is bad. But it would also be bad to have Senate vacancies persist for months.

Senator Kennedy's proposal is not that the Massachusetts Governor be empowered to fill his seat until the 2010 elections, but only for the interim period -- 160 days at most -- before a special election could be held in accordance with state law. This reasonable compromise would assure the voters of a swift opportunity to choose their next Senator while also ensuring that they have a full complement of representation in the interim period.

The Times complains that the proposal would give the appointed replacement an unfair leg up in the special election. That's probably somewhat true, although the advantage of being a five-month incumbent wouldn't be as large as the advantage of a nearly two-year incumbency that many current appointed Senators will have. This small advantage seems a reasonable price to pay for the benefit of having proper Senate representation. (Kennedy suggests the Governor should appoint someone who promises not to run in the special election to avoid this problem.)

The Times also complains that Massachusetts created its special election law to prevent former Republican Governor Mitt Romney from having the power to replace John Kerry if he had won the presidency and that it would be unseemly to switch back now just because the current Governor, Deval Patrick, is a Democrat. Hey, that's just politics. Sometimes you to do the right thing for a crass reason.

Those 60 Votes

Everyone's still talking about how Al Franken's arrival in the Senate gives the Democrats the magic 60 votes . . . except not really, because two Democratic Senators are sick, two are really Independents and several are moderates who don't always toe the party line.

So here's a radical idea -- how about taking those 60 votes, and . . . changing the 60 vote rule! It's not as though the rule is in the Constitution. It's just Rule XXII(2) of the Senate rules, and it could be changed any time by majority vote . . . if you could get 60 votes to close debate on the rule change, that is. Well, now the Dems have 60 votes, kind of, so why not lower the cloture threshold to 55? Or how about 51? Call me crazy, but why not implement majority rule?

It's always been absurd that 41 Senators can veto something the other 59 want to do. It's particularly absurd when one considers that, because of the appalling malapportionment of the Senate, the 41 Senators blocking legislation might represent as little as 11 percent of the U.S. population. (That's right, the 20 least populous states, plus half of the next least populous state, make up only 11 percent of the total population. Check it yourself.)

Of course, in pointing that out, it's only fair to point out also that, if the Senate operated by majority vote, the 51 Senators passing legislation might represent as little as 17 percent of the U.S. population. Even the 60-vote rule guarantees only that legislation will have the support of 24% of the nation (that's what would happen if the Senators from the 30 least populous states voted for cloture on a bill), which is still kind of crazy. But because the House of Representatives is population-based (putting aside minor glitches such as the requirement that each state have at least one Representative), it guarantees popular support for legislation. So the power of 11% of the nation to block legislation is a more egregious failure of democracy than the power of 17% or 24% to pass legislation, inasmuch as legislation requires majority popular support to get past the House.

So the bottom line is that the possibility of filibusters in the Senate is a pernicious departure from the basic principle of majority rule. Yes, the Framers of our nation's Constitution designed the Senate to be part of what makes the federal government creaky and inefficient, to protect us from too much national power. But even a 51-vote requirement in the Senate does that. The Framers didn't stick in a 60-vote requirement. Let's take the 60 votes the Dems have now and lower the threshold to something more reasonable. If we can't get it down to 51, 55 would be better than what we have now.

Filibuster-Proof Majority?

Does Al Franken's victory give the Democrats a filibuster-proof majority? In theory, yes. In practice, it'll be kind of tough.

The Senate's famous Rule 22, innocuously titled "Precedence of Motions," provides that a cloture motion can be passed by "three-fifths of the Senators duly chosen and sworn," which means that the Democrats would have to get all 60 of their members to vote for cloture to defeat a Republican filibuster. That won't be so easy, with two of the Democrats being quite sick, two of them really being Independents, and several of them being moderates who don't necessarily stick to the party line. Of course, they might pick up a Republican or two to make up for it, but based on recent history that doesn't look so easy either.

Bear in mind that even a successful cloture vote doesn't mean that the Senate immediately proceeds to vote on the pending bill; it just means that debate will eventually be brought to a close. Rule 22 provides for thirty hours of debate, which can include amendments, following a successful cloture motion. And the Senate rules provide innumerable other ways to clog up business, plus there's the "hold" practice that isn't even in the rules.

What the Democrats should do is use their filibuster-proof majority to amend the filibuster rule to make things a little smoother. Like perhaps they could lower the cloture vote to 55. That would be quite a change.

About Damn Time

I think the Minnesota Supreme Court reads this blog. I complained yesterday about how they were taking their sweet time deciding the Minnesoat Senate election case. Well, today, they issued their decision. And about time, too.

Franken wins. It's unanimous. The decision is somewhat about legal issues, but mostly about how Coleman just hadn't proved his case. That will make further appeal difficult for Coleman.

I think Franken is going to the Senate. When a court comprised of a majority of Republican appointees rules for the Democratic candidate on primarily factual grounds, the opinion has a lot of heft. Coleman is going to have a tough time getting anywhere.

Update: It looks like Coleman reads the blog too. He has conceded.

Meanwhile, in Minnesota . . . (cont.)

Wondering what's up with that Minnesota Senate Race? I was too. The answer is, nothing. Nada, bupkis.

It's been five days since even the Minnesota Star ran a story on the race -- and all it said was "Wait is Agonizing for Coleman, Franken." How about the rest of Minnesota?

The fault lies squarely on the shoulders of the Minnesota Supreme Court, which heard argument four weeks ago and hasn't uttered a peep since.

C'mon, you MN justices! Wake up! The leisurely briefing schedule you set for the case was bad enough, but now briefing is over, argument is over, and it's time to decide. What do you think this is, a slip-and-fall case? This is important! A U.S. Senate seat is at stake! We need a decision. Act now.

Man Up, NY Democrats

Look, I'm not happy either that Republicans have taken over the NY State Senate, but the Democrats' response is ridiculous. Democrats locked the Senate chamber's doors and unsuccessfully tried court action to block the Republican takeover. Then they stayed off the floor and prevented the Republicans from having a quorom.

The Republicans are, of course, engaged in the usual absurd posing when they claim that their actions are not a power grab but an effort at bipartisan reform. And it's not a coincidence that the two Democrats they've brought over to their side have their own ethical challenges (one has campaign finance scandals and the other is accused of slashing his girlfriend's face with a broken glass).

But the Democrats are not showing themselves to advantage either. Legislative bodies are governed by majority vote. If the minority side gets more votes, it becomes the majority side. When Jim Jeffords switched parties in the U.S. Senate, that Senate went Democrat. The Republicans didn't lock the doors and run crying to a court to try to keep control.

Democrats, stop whining. If you have the majority, you have it, and if you don't, you don't. If there are more votes to make someone else the majority leader, you're not it anymore.

Do your wheeling and dealing in the back rooms. If you can get back the votes, fine. But if you can't, you have to reopen the Senate and let the other side have its day.

Bracing for a Fight

As one might expect, interest groups are gearing up for battle over the Sotomayor nomination.

But wait, should one really expect that? It's true that Supreme Court nominations often produce big battles. But this one should produce only a little battle. It's a simple question of numbers.

The Clarence Thomas nomination was a big battle. But Thomas was appointed by a Republican President at a time when the Senate had 56 Democrats. The Democrats had a reasonable prospect of blocking the nomination. Hence, a big battle was to be expected.

The recent Roberts and Alito nominations show what happens when the numbers are different. They were appointed by a Republican President when the Republicans held 55 seats in the Senate. There wasn't that much the Democrats could do to block the nomination. A filibuster was theoretically possible, but it's tough to filibuster a Supreme Court nomination in the full glare of the national spolight. So the battle wasn't nearly as big.

Now a Democratic President has nominated Judge Sotomayor when the Democrats have 59 seats in the Senate -- possibly 60 if Al Franken gets in before the nomination is considered. Realistically speaking, this nomination is going through. The interest groups will rattle their sabres, play to their bases, and raise lots of money, but there's just not that much they can do. And that's before you even consider the Republican fear of taking on the first Hispanic Supreme Court nominee. I expect a small battle, not a big one.

Meanwhile, in Minnesota . . .

Have you lost track of the Minnesota Senate Race? It occurred to me that I haven't thought about it in a while. The reason is that we're all waiting for the Minnesota Supreme Court to act.

Last month, Coleman's request for judicial review of the actions of the state elections apparatus actually led to an increased lead for Franken -- at the close of play he was up by 312 votes. But Coleman kept appealing; now the case is in the Minnesota Supreme Court.

That court has put the case on a leisurely schedule whereby Coleman's brief was due April 30; Franken's will be due May 11; and Coleman's reply will be due May 15. Then we'll all take a couple of weeks to fish and barbecue before oral argument on June 1. Of course there's no date set for the decision.

This is what the court calls an "expedited" schedule. Well, I suppose it is expedited compared to the normal case briefing schedule, under which briefing takes about two and a half months and the parties can wait another six months or so for argument after that. But heavens, this is an important case and the court could have gotten its judicial rear in gear a little faster.

As in most situations in which matters sit in a queue for a long time before action, it's usually possible to process any one matter very quickly if you allow it to jump the queue. The U.S. Supreme Court granted certiorari in Bush v. Gore on December 9, 2000, ordered briefs filed the next day, heard argument on December 11, and decided the case on December 12.

Bush v. Gore was not the Supreme Court's finest hour, to put it mildly. So I commend the Minnesota Supreme Court for not dashing through the Franken/Coleman case in three days. But that doesn't mean it requires more than 30. A week for each side's brief and then oral argument a week later would have been plenty.

Every day of delay in this case is another day that the people of Minnesota are deprived of half their representation in the Senate. The Minnesota Supreme Court should move more swiftly.

. . . And Counting

Are you wondering what's happened to that Minnesota Senate recount? The answer is that it's dragging on. The three-judge court hearing the case is receiving hundreds of pieces of evidence and the two sides want to call lots of witnesses -- perhaps even officials from all of Minnesota's 87 counties. One of the judges has said that the court will "make sure that every legally cast and wrongfully rejected ballot is opened and counted," but when and how that will happen is unclear.

The trial illustrates some of the difficulties of judicial review of administrative action. Judicial review is an important, indeed essential, step in the process. Without it, administrative agencies can and may do anything they want, without regard to legality. But judicial review can be a mess. Hundreds of officials were involved in the initial recount, which took weeks. Chaotic as it was, it at least had some semblance of a standardized process -- because it was conducted by the agency charged with doing it. Everyone worked hard, ballots were painstakingly considered, and a result achieved.

Now the whole thing is in the hands of three judges who, as far as I can tell, have no particular expertise in election matters. There's no standardized process for their reconsideration of the election. These three judges get to reconsider the efforts of hundreds of election officials. One can see why some scholars suggest judicial review causes more trouble than it's worth.

Well, the above picture is somewhat idealized. In fact, the agency consideration wasn't so pristine in this case. The "standardized" process involved things like sometimes accepting the election day count (when an envelope full of ballots was lost), and sometime not. Inexpert judges sat on the state canvassing board. So perhaps the agency process was not so different from the judicial review process.

But at least there was something like a dedicated agency process. The state elections expert -- the Secretary of State -- headed up the board.

I've previously stated my view that there's probably no way to really know who won this election. Every new level of tinkering with it decreases my confidence in the result. I adhere to my basic belief in the value of judicial review, but it's hard to see how much it can help here.

Honorable (But Silly) Compromise

OK, so Roland Burris can be sworn in now. Apparently the Illinois Secretary of State still hasn't signed Burris's appointment certificate, but he signed a separate document attesting that the certificate is valid. The previous Illinois Supreme Court ruling points out (near the end) that Illinois law requires the Secretary of State to provide a certified copy of any record or paper in his office. The Governor's appointment certificate for Burris was such a record or paper, so the Secretary provided Burris with a certified copy.

I'm sure the Secretary had a wonderful time playing games here, and it's good that the Illinois Supreme Court did research that the parties didn't do and came up with a solution, but still, the whole thing is ridiculous. If, as the Secretary of State claimed, he wasn't required to sign the appointment certificate, why has he and his predecessors been signing the certificates for Illinois members of Congress for decades? Also, after Senator Reid claimed that the Senate had never made an exception to the certificate requirement since 1884, it seems that they made something like an exception -- or at least gave the Senate rule a generous construction. I still say the Secretary of State should have signed the certificate.