George Will, Miguel Estrada, and the Cloture Vote:
How Will's Flip-Flop of Positions Illustrates the Increasing Collapse of the Politics/Law Distinction

By EDWARD LAZARUS

Thursday, Mar. 06, 2003

The flurry over Miguel Estrada's controversial nomination to the U.S. Court of Appeals for the District of Columbia continues on. So does the Senate Democrats' filibuster to stop Estrada from being confirmed.

Meanwhile, a rarely-invoked Senate Rule on the cloture vote has once again become a hot political football. Senate Rule XXII requires 60 votes of the Senate's 100 to stop debate, and break a filibuster.

Rule XXII's constitutionality is debated. Some believe that votes must be by a simple majority of 51, not a supermajority of 60, except in the limited cases in which the Constitution imposes a different rule.

Attorney Lloyd Cutler has put the argument as follows: "The text of the Constitution plainly implies that each house must take all its decisions by majority vote, except in the five expressly enumerated cases where the text itself requires a two-thirds vote: the Senate's advice and consent to a treaty, the Senate's guilty verdict on impeachments, either house expelling a member, both houses overriding a presidential veto and both houses proposing a constitutional amendment."

It's an interesting argument. Even more interesting is that the high priest of conservative columnists, George F. Will, has, over time, taken both sides of it - first attacking it, and now recently embracing it.

What spurred Will's change of mind? Sadly, it seems to be purely politics. That would be fine if it were an issue of policy, and politics. But it's not: It's an issue of constitutional law, which is supposed to have an answer deriving from history and precedent - an answer that transcends politics.

George Will's Flip-Flop on the Cloture Vote

Will, a historian of sorts, frequently opines on legal and constitutional issues. He generally holds himself out, as most commentators do, as an honest broker of ideas, albeit a broker with a distinct perspective. In that role, Will has twice addressed the issue of Rule XXII.

The first time was in 1993. At the time, Democratic stalwarts, such as Cutler, were challenging Rule XXII. They feared that, despite Democratic majorities in both the House and Senate, Republicans would use the filibuster to frustrate the agenda of the new Democratic president, Bill Clinton.

At the time, Will took Cutler to task for his doubts about the constitutionality of Rule XXII. He complained that taking issue with the Rule was "institutional tinkering" that "would facilitate the essence of the liberal agenda - more uninhibited government." And he took direct aim at Cutler's argument about the Rule.

Specifically, Will argued that the five instances of supermajority votes listed in the Constitution were the only time supermajority votes could be used for externally-oriented legislation - "the disposition by each house of business that has consequences beyond each house, such as passing legislation or confirming executive or judicial nominees." However, "procedural rules internal to each house," according to Will, "are another matter." And in that sphere, a supermajority cloture vote was fine.

Indeed, Will pointed out, history supports this view: "[T]he generation that wrote and ratified the Constitution - the generation whose actions are considered particularly illuminating concerning the meaning and spirit of the Constitution - set the Senate's permissive tradition regarding extended debate. There was something very like a filibuster in the First Congress."

Fair enough. Until one reads the column Will published last week in The Washington Post regarding the Estrada nomination. Here's what Will has to say now (with emphases added):

The president, preoccupied with regime change elsewhere, will occupy a substantially diminished presidency unless he defeats the current attempt to alter the constitutional regime here. If at least 41 Senate Democrats succeed in blocking a vote on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the Constitution effectively will be amended.

If Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.

Wait a second. So Will now agrees with Cutler? And not only that, he reads both the Constitution's text and "two centuries of practice" relating to filibusters entirely differently than he once did? What's prompted his change of mind? And doesn't he owe Cutler an apology?

Obviously, conscientious commentators do change their views when they re-examine them and find them in error. I am no fan of a "foolish consistency" in such matters. But this kind of change of mind - without explanation or apology - is quite troubling.

Also troubling is the fact that Will's close analysis of the Constitution and the First Congress's proceedings, so important to him in 1993, is entirely missing here. And his venom - once directed at Cutler - now draws on Cutler (without attribution) instead. Only one conclusion seems possible: This is an exquisitely brazen example of intellectual flip-floppery that has nothing to do with law or the Constitution, or American history, and everything to do with conservative politics.

What the Flip-Flop Means For Will, And For All of Us

The flip-flop is an embarrassment to Will and his reputation. Sadly, it may also be more than that as well. I fear that Will's adventure in hypocrisy is emblematic of what may well be the worst truth in American political discourse: nothing is shameful anymore. And no sense of integrity - an integrity that transcends politics - remains.

It seems especially ironic (or perhaps appropriate) that Will should come to represent this problem. After all, he - and commentators of his ilk - have spent the last decade or two bemoaning the rise of moral relativism in our society. They mourn the death of "shaming" as an instrument of behavior modification for politicians and citizens alike.

In the culture wars, Will and others like him have been the army defending such concepts as objective truth and personal responsibility. They have been the ones saying there is a right thing to do, independent of politics, independent of the times. They have carried the banner of integrity, in short. Now it's plain, though, that Will has torn up that banner even while pretending to uphold it.

I confess that I'm a sucker. I believe in these kinds of things - integrity, truth, certain absolute moral values, a right thing to do. Maybe it's all that Plato I read in college. I've always believed there is such a thing as a "true" answer (even if we cannot know it with certainty), and that there are ways of discerning better from worse, whether in argument or music or literature.

Nowhere did these beliefs seem to be more important than in the field of law. Courts wield great power to shape the social order and control the destiny of individuals. Their integrity rests ultimately on the belief that their decisions are not merely just that - exercises of power - but are, in addition, principled attempts to discern the proper meaning of the law. And the idea that there is a "proper meaning" in the first place, in turn presumes a universe that recognizes a genuine ability to choose better arguments over weaker ones, regardless of what one thinks of the results the arguments lead us to.

In according with these principles, I've critiqued legal reasoning even when I agree with its result, if I've felt the reasoning itself was flawed. For instance, though I support abortion rights, I've expressed strong qualms about Roe.

Now, however, it seems integrity is being radically redefined, as pure loyalty - fealty to the party, the political beliefs, the results that one prefers. Lying in the service of a cause has become, in some circles, honorable to do.

Changing Times Have Ushered In a Norm of Intellectual Dishonesty

Intellectual dishonesty is pure poison to the enterprise of the law. Yet countless examples show intellectual dishonesty has now become a routine, expected part of American discourse. The most obvious half-truths and hypocrisies are greeted with shrugged shoulders and a grunt of "what did you expect?"

These dishonesties that we have come to accept too easily range from the non-reasoning of Bush v. Gore, to the logic-defying economic rationale for more tax cuts, to the ever-shifting justification of war in Iraq. And they extend to just about every other significant issue of law and policy that affects American life.

Why does this happen? It cannot be because all the people perpetrating these intellectual frauds are bad people. It's been my experience (limited, I admit) that most people who go into government or devote themselves to a life of public policymaking or intellectualism, do so for the best of reasons - because they want to help shape the world for the better.

Then why? I found a partial answer watching, last night, an old clip of Daniel Ellsberg being interviewed by Walter Cronkite, in the wake of Ellsberg's controversial release of the Pentagon Papers. To paraphrase, Ellsberg contended that our society had become so divided, with each side so bent on perpetuating itself in power, that government and the world around it imposed a sustained and terrible pressure on good people to make a choice. They could either leave that world or, far worse, give up the search for truth, in exchange for the search for victory.

That was more than 30 years ago. Has anything much changed?


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Lazarus's earlier column on the Estrada nomination can be found in the archive of his columns on this site. Lazarus thanks "Atrios," J. Bradford Delong, Steven Michel, and the other bloggers who first juxtaposed the two Will quotations on the cloture vote.

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