March 1, 2010

Washington Scene: Principle Over Partisan Politics

By Warren Belmar

The Easter Recess is over and Congress returned to Washington to find that the battle scars from the fight over health care reform are still open wounds, and that the upcoming legislative and confirmation battles will likely ensure that those wounds will not heal anytime soon. 

Regardless of one’s position on the merits of the new health care reform law, one has to be saddened and concerned about the ways in which the legislative process is now operating. What were once rarely used exceptions to the rules by which Congress conducts its business have now become accepted and readily invoked approaches to pass or oppose legislation and Senate action on presidential nominations. Among the practices that have become integral parts of the current process are instances in which members of the House and Senate are called upon to vote virtually immediately on voluminous bills containing provisions neither they nor the public have had adequate time to review; a willingness to resort to “deemed passage” of legislation; the avoidance of the Conference Committee as a means of finalizing legislation for submission of the same bill to both Houses; the use of the reconciliation process for purposes beyond budget reconciliation matters; and the use of filibusters in the Senate to avoid votes on legislation and nominations. While the arguments supporting or opposing resort to these procedures have been advanced time and again in recent years, it seems that the identity of members and interest groups on each side of the debate keep changing, depending on which party is in control of the House, Senate, or White House.

Whatever goodwill remains among the members of Congress and the Administration will be further frayed over the coming months if there is regular resort to exceptions to the rules in the upcoming debates over reform of the financial markets, climate change and energy legislation, taxation and budget deficit proposals, immigration reform, and judicial confirmations.

As lawyers, we should be especially concerned with the way in which the Senate conducts itself when it decides whether to confirm President Obama’s nominee to succeed retiring Supreme Court Justice John Paul Stevens. During the last Administration, Democrats in the Senate, including then Senator Obama, eloquently explained that it was entirely appropriate for a Senator to engage in a filibuster of a nominee deemed to be outside the legal mainstream rather than to allow the Senate to proceed to an up or down vote. At the same time, Republicans eloquently argued that resort to filibusters to block up or down votes on nominees for the Supreme Court and the Circuit Courts was improper and perhaps even unconstitutional. Whether we see the Democrats and the Republicans recycling each other’s speeches will depend on how controversial or uncontroversial President Obama’s nominee turns out to be.

As senior lawyers, we should participate in the upcoming legislative and confirmation debates. Your wisdom and experience are needed to advance principle over partisan politics.