I was listening to something on TV about the filibuster controversy, and suddenly, I remembered what Cole said about Iraq in this BBC article (see my “Juan Man, Juan Vote” post):
In fact, I wouldn’t be surprised if the two-thirds super-majority is characteristic of only one nation on earth, i.e. American Iraq. I fear it is functioning in an anti-democratic manner to thwart the will of the majority of Iraqis, who braved great danger to come out and vote.
So I thought to myself, Cole must’ve written something on the filibuster issue, and sure enough here it is:
The senators have to consent. In the case of the presidents’ treaties (which affect their prestige and often policies much more than a mere judicial appointment) there even has to be a 2/3s majority in concurrence. Such a supermajority is not required for the appointments, but there is clearly no presumption that the president should be deferred to by the senate. The president should be consulting beforehand, which would have made consent easier to obtain. The issue isn’t the filibuster. The issue is the independence of the Senate and of the judiciary. The question is whether we have 3 branches of government, or only one.
Cole then proceeds to quote Sen. Joe Biden (from an interview with Chris Matthews):
Look, this whole thing underscores they don`t understand the Senate. Up until 1947, there wasn`t -- you needed a unanimous consent. From the time of the Constitution to 1947, you needed unanimous consent in order to get a judge through. They changed the rule in 1917 to say you could have - - three-fifths of the senators could vote to cut off debate on legislation, but they said but not for nominees, because the founders never intended that.
This is all about the independence of the judiciary. When you go to the point where you can have 51 senators make a decision on every single -- imagine if that rule had been in place when Roosevelt tried to pack the court. What would have happened? [Emphasis mine.]
Of course, the filibuster is another form of minority veto, which is one of the consociational aspects of American democracy (which itself is a mixed majoritarian-consociational system.) So, if the Iraqis adopt a consociational system with a minority veto that doesn’t allow for a 51% majority to run the country unchecked, Cole spits on it as a “neo-colonial” enterprise bent on creating an “American Iraq” which, according to Cole’s informed guess, would make it the only country in the world to adopt a 2/3s super-majority system!
Minority veto for me, not for thee.
Addendum: I just saw some old posts by Jelloul of “Postcolonial Iraq” that deal with Cole and his stances on Iraq’s election and post-election arrangements. See here and here. Here’s a relevant quote:
Cole is desperately trying a “regrettable” supplementation, a “once occurrence” as he says, into his ethno-centric constitutional system; that is, he is making a small concession to more local practices. But, how would 20% or 25%--make it 49%--of parliament members and constitution legislator prevent “a tyranny of the Shi’ite majority”? How would parliament decide on some “over-representation” of the Sunnis in some upper house if the majority of parliament members are Shi’ites? And suppose they agree to do so, how would an equal representation in [the] senat[e] alone stop Shi’ite tyranny in parliament and thereby in the whole balance between the two chambers? Well, that remains something of a mystery.
