Monday, 12 March 2012

A Fuss over Filibuster


A Fuss over Filibuster
The document dates back to 2003.

The issue at stake is the controversial procedure of filibuster which enables a minority of Senators to frustrate the will of the majority.

Bill Frist, the Republican majority leader at the time intended to limit the right of senators to filibuster.
Indeed, he wished to reduce the number of Senators needed to vote a motion of cloture from 60 to 51 senators.

Frist’s major argument is that filibuster is unconstitutional because it is anti-majoritarian.
However, one may challenge Frist’s arguments.

Firstly, one may argue that contrary to what Frist’s comments may suggest, the Senate confirmed the vast majority (an overwhelming majority) of Bush’s nominees to the bench.

The figure, which speaks for itself, shows that Frist’s argument is groundless.

Secondly, the Democrats claim that Frist’s reform would make it too easy for the majority in the Senate to ignore the views of the minority and so would reduce the chamber to a mere “rubber stamp”.

Finally, one may also question Frist’s constitutional argument as according to the journalist, the constitution itself contains several blocking devices which frustrate the will of the majority.

For example, each state is represented by two senators, regardless of its size or population. (However, this argument is quite arguable.)

The Electoral College does not necessarily reflect the will of the popular vote either. Once a party has won the popular vote in a given state all the Electors for that state will vote for their candidate. Therefore the vote of the 45% (for example) who did not vote for this party are totally unrepresented by the Electors.

Bill Frist’s argument is all the more surprising that two of these features (the Electoral College and the Supreme Court) have played a part in having G. W. Bush elected in 2000 despite the fact that the latter had lost the popular vote. 

Sunday, 11 March 2012

"Essay Correction" on Twelve Angry Men


Twelve Angry Men
1957
(Story and screenplay by Reginald Rose. Film directed by Sydney Lumet)
From the reference to the Woolworth building that the jurors may see from the window, we may infer that the action is set in New York.
This building, which is located in lower Manhattan not far from the N.Y. Supreme Court, was built for M. Woolworth who ran a firm of department stores selling cheap items in 1913. The president at the time was Woodrow Wilson (Democratic president 1912-1920). He inaugurated the building from Washington D. C., by pressing a button that lit up the 80.000 bulbs of the building.
Vocabulary:
To be at somebody’s beck and call
To give $5 to the cause (aux bonnes oeuvres)

I. The tension
At first, the tone of the conversations is congenial. But the situation deteriorates (goes downhill) fairly rapidly. To convey a sense of tension, Lumet draws a parallel between the storm which is brewing outside and the stifling atmosphere in the room.
When the jurors enter the jury room, they observe that it is the hottest day of the year. It is sizzling hot / baking hot / stifling hot/ roasting. On top of this, the windows open with difficulty and the fan is on the blink (it has broken down). Finally, they are locked into the room.
Driving rain / to be raining cats and dogs / a downpour
A lightning bolt / A flash of lightning / A roll of thunder
(/ The weather is muggy, and makes the jurors feel hot and clammy)
The bigot (the man who suffers from hay fever which makes him impatient and irritable) cracks a joke. He makes fun of / makes sport of the foreman’s suggestion that the jurors should take a preliminary vote by ballot.
He is eager to leave the room quickly / to get it over with as soon as possible. (He wishes he could go home. He would like to go home.)
Wish + Present Conditional: Wish on present or future
Wish + Preterit: Wish on present or future but impossible to fulfil.
Wish + Past Perfect: Regret
The juror with the hat is of the same opinion, as he is attending a baseball game that evening.
The tension cranks up a notch:
-       When Fonda refuses to raise his hand and suggests spending an hour to discuss the case before “sending the kid to the chair”. The bigot who is a great element of tension chuckles and mutters under his breath: “boy oh boy there’s always one”.
-       When Fonda suggests they should sit for an hour, the bigot pretends to tell a funny joke totally unrelated to the case, thereby implying Fonda’s suggestion is preposterous and a waste of time.
-       When the bigot, (who constantly upsets the rules of the discussion), launches into a racist diatribe it irritates the old man causing him to stand up and protest.
-       When Fonda asks “the bigot” why he believes the woman’s testimony whereas he doesn’t believe the kid as “she is one of them too”.
-       When the Bigot calls the Foreman a “kid” whereas the latter is only trying to keep things organised, causing the Foreman to grow weary and lose his temper.
The tension reaches its climax when H. Fonda pulls out the very same switchblade knife / flick-knife (…)
(The “gentleman is entitled to see exhibits in evidence”)
II. The case
The defendant is a young offender who has just turned 18 years old and who allegedly stabbed his father to death.
He is said to have stabbed his father. He is accused of having killed his father.
He grew up in a slum. He comes from an under-privileged background (/ neighbourhood).
His mother is not mentioned and he was raised by his father who is a drunkard (an alcoholic), who was convicted for forgery and who used to beat him up. He is a repeat offender (/a “jailbird”). He is a petty criminal. We can infer from the context that the building where the killing took place is probably a “tenement”.
To mug someone: to assault for money.
Two eyewitnesses claim they saw the kid stab his father and runaway from the apartment.
One is a woman who lives in a building opposite the building where the killing took place, across the elevated train.
The other witness is an old man who lives in the same building, in an apartment just one storey below.
These two people bore witness / gave evidence / gave testimony / testified in court.
(To bear witness)
The accused however claims he was at the cinema at the time of the killing.
(To claim ≠ to pretend)
It appears that during the trial, the prosecution relied heavily on these 2 witnesses.
The accused was defended by a public defender. Henry Fonda questions the competence of this attorney. Maybe the public defender believed the kid didn’t stand a chance. Fonda blames him for not having cross-examined the witnesses. Had he been in the place of the accused / If he had been in the place of the accused, he would have asked for another lawyer.
(To blame someone for doing something / for not doing something).
III. Arguments of the Jurors (Never in the movie are the names of the jurors mentioned.
(We’ll only know the names of the old man and of Henry Fonda’s character at the very end of the film. Naturally, this intends to throw light on the fact that jurors are anonymous.)
Juror n°1: “The little man with the glasses sitting on the left of the Foreman”
His argument is that the defence did not prove that the boy was innocent. However, as Henry Fonda’s character points out, the burden of proof is on the prosecution. It is up to the prosecution to prove that the defendant is guilty.
Juror n°2: “The loud man at the head of the “beck and call” company who tells the story of his son.
When this juror presents his argument, he asserts that he is only concerned with facts. However as he digresses to tell the story of his own personal fight with his son, one can’t help but feel that somehow the man identifies himself with the victim. He sympathises with the victim (/ he feels sympathetic to the victim).
In reality, he has a personal issue which prevents him from being objective.
Juror n°3: “The Broker”
This juror appears as extremely rational and tempered. His is a very analytical mind. For him the boy his guilty and he explains the guilt of the accused by the environment in which the boy grew up (“slums are breeding grounds for criminals”).
Besides, he is very suspicious of the boy’s alibi. He considers the boy’s alibi is ‘flimsy’. Indeed nobody saw the defendant at the cinema and he cannot remember the title of the film he is supposed to have watched.
He does not set / put great store by the defendant’s arguments. (To set great store by something)
He focuses on the weapon the kid is supposed to have used as well, trying to prove that his knife was a very unusual knife.
Juror n°4: “The man from the Slum”
At first, this juror decides not to justify his choice. We note that when the jurors took the customary preliminary vote, he hesitated to raise his hand, as if not quite certain of boy’s guilt, but influenced by the other jurors around him.
Juror n°5: “The painter”
This juror is not concerned with the fact that the defendant was unable to prove his innocence, nor does he try to explain the boy’s criminal mind by the environment in which he grew up. On the contrary, he is mainly concerned with the motive of the accused. For him, the fact that the boy had been beaten up repeatedly by his father prompted him to retaliate and stab him to death. As the broker says, everybody has a breaking point and the two slaps in the face may have been “two too many”. Contrary to the broker, the painter grants a lot of importance to the fact that the kid said he had been punched in the face and not slapped in the face.
Juror n°6: “The baseball man”
He is eager to go to the stadium to see a baseball game. He believed the boy was guilty right from the start. He focuses on the past of the accused, on his personal record. The assaults he had committed previously some of which involved the use of a knife: “Oh, he is really handy with a knife”.  
He’s still convinced of his guilt and asserts that discussing the case for a hundred years would not make him change his mind.
Juror n°7: Henry Fonda’s character who voted Not-Guilty
He is the only one to have doubts as to the guilt of the accused. He challenges all the other jurors’ arguments. He says the defendant does not have to prove his innocence. He is not convinced by the prosecution’s arguments. He believes the prosecution does not have a strong case as it relies only on the two testimonies of the witnesses and that even if the witnesses were under oath, they’re only humans and as such are liable to make mistakes. He also proves for instance that the kid’s knife is not as unusual as the prosecution or the broker claim.
Juror n°8: The old man
He does not get a chance to talk but he disagrees with the bigot’s arguments right from the start.
Juror n°9: A watchmaker (who is not a native speaker)
He is one of the jurors who are not given the opportunity to talk. However, as an immigrant, we understand that he is not receptive to the arguments of the bigot / he does not see the bigot’s arguments in a favourable light.
He sides with the man who grew up in a slum when the latter snaps at the insulting bigot.
Juror n°10: The bigot who is also a bully
He keeps interrupting the other jurors and breaking the rules that have been fixed by the foreman. He is cranky and cynical. He is a bully as he keeps interrupting everyone else in the room. He relies on the testimony of the witness who lives in the apartment across the street. But his arguments against the defendant are mainly motivated by pure racism and xenophobia.
To be prejudiced against someone
Juror n°11: The advertising man
He is nice, pleasant and accommodating and tries to appease the tension between the jurors. But he is also a little shallow (i.e. superficial). He trusts the testimonies of the two witnesses as “these people were under oath”, even though he concedes that a trial ‘is not an exact science’.
Juror n°12: The Foreman
Does not present any argument.
IV. Inconsistencies
It appears that Henry Fonda’s character has carried out his own investigation. This is improbable and in any case, it is totally forbidden for jurors to do so. If this element is very efficient from a dramatic perspective, it is one of the great inconsistencies of the film. Jurors have to rely on the evidence admitted in court only to come to a verdict. Jurors’ investigation contravenes / goes against the principle of the adversarial system according to which lawyers only have the right to cross-examine witnesses.

Another inconsistency of the movie is that juries are supposed to represent a cross-section of society. However we note that jurors in the film are exclusively white men (and as such do not represent minorities such as women for example). Even in the 1950s this would have been unusual. 

Monday, 5 March 2012

What is a filibuster?


What is a filibuster? Why are they permitted in the Senate but not the House? Can you do anything to stop one?

The English of Law: U.S. Law and Politics, (Belin Sup).

The word filibuster comes from the Spanish word filibusteros; a term used to describe pirates that plundered in the seventeenth century. In the United States, the word eventually became synonymous with rebels and insurrectionists, a perfect term to describe a technique used by rebellious senators looking for ways to hold up legislation.
A classic anecdote has Thomas Jefferson asking George Washington about the purpose of the Senate. Washington responded with a question, "Why did you pour that coffee into your saucer?" "To cool it," Jefferson replied. To which Washington said; "Even so, we pour legislation into the senatorial saucer to cool it." The framers of the Constitution intended the Senate to cool legislation by being a more deliberative body than the House. It was smaller, members were older, Senators were elected for longer terms, and elections were staggered and decided by state legislatures.
The House of Representatives has a Rules Committee that places a limit on debate when a bill goes to the floor. The Senate has no such committee. As a result, a bill is informally scheduled to come up on the Senate floor where debate can be endless. A filibuster occurs when a Senator engaged in debate refuses to yield the floor and thus prevents a roll call vote from taking place. The image of a Senator standing his ground on the Senate floor is epitomized by Jimmy Stewart with his performance in Mr. Smith Goes to Washington. Filibusters provide a minority of Senators a way to make their voices heard.
Filibusters also give a tremendous amount of power to individual Senators. Senators have used the filibuster, or the threat to filibuster in order to maximize their leverage with the President or other Senators. In 1985, Oklahoma Senator David Boren held up Edwin Meese's confirmation vote as Reagan's Attorney General until Reagan agreed to sign an emergency farm relief bill.
South Carolina Senator Strom Thurmond holds the record for the longest speech in the history of the Senate. During debate on the Civil Rights Act of 1957, he spoke for a total of twenty-four hours and eighteen minutes. (…)
Filibustering has become much more common in recent years. Roughly two-thirds of all filibusters in the Senate's history have taken place in the last thirty years. Filibusters where frequently used to stop civil rights legislation from passing in the 1950s and 1960s. Since then however, filibusters have been employed to stall bills of all types. This has led some to argue that filibustering has been trivialized.
A filibuster can take place at several stages during the legislative process in the Senate. Before a bill is even introduced, a senator can place an anonymous hold on a bill through the majority or minority leaders. A hold is simply a threat to stage a filibuster if the bill comes up for a vote. A motion to bring up a bill can be filibustered. Amendments to a bill can be filibustered. Appointments to conference committees with House members to consider the bill can be filibustered. Conference committee reports on the bill can be filibustered.
How can a filibuster be stopped?
A filibuster can be stopped when the Senate invokes cloture. This can be an arduous task in and of itself. To invoke cloture, a Senator needs to do the following:
1. Wait two days after a filibuster begins.
2. Obtain sixteen signatures on a motion to invoke cloture.
3. Wait another two days before the Senate can vote on cloture.
4. Make sure that three-fifths of the Senate (sixty Senators) vote to end debate.
5. Endure and additional thirty hours of debate before the final roll call vote.

Obtaining cloture is not necessarily a guarantee that the filibuster will be over. Some Senators have discovered loopholes that can still impede the legislative process. In the spring of 1976, Senators James Allen (D, Alabama) and Roman Hruska (R, Nebraska) developed a way to "filibuster by amendment" on an antitrust bill. Under Senate rules, pending germane amendments can be considered after cloture has been invoked. Allen and Hruska simply ensured that numerous amendments were offered. Since each amendment requires a roll-call vote lasting fifteen minutes or more, the two senators were able to tie the Senate up. After seventy separate roll-call votes, it became clear that no end was in sight. The bill's sponsors finally agreed to support an amendment proposed by Allen and Hruska.
Many Senators have proposed changes to minimize the effect of a filibuster. The last significant reform was adopted in 1975 when the Senate voted to change the required number of votes needed to invoke cloture. Prior to this date, two-thirds of the Senate, or sixty-seven votes were needed. Under the 1975 rule, this number was changed to three-fifths, or sixty senators. Some recent proposals include limiting the filibuster to one time per bill, further reducing the number of votes to invoke cloture, and limiting the amount of time for debate once cloture has been invoked.
Opponents to reform efforts argue that they will damage the Senate's ability to be a more deliberative chamber. They also contend that reforms would come as a disadvantage to those in the minority who want to make their voices heard.
Whatever the outcome may be, it is clear that the filibuster has been a tradition in the Senate for many years. It is one of the most distinctive differences between the Senate and the House and will always have some place for better or for worse in the legislative process.
Contributing Author, Shad Satterthwaite, Ph.D., University of Oklahoma
Questions:
1.     What is the purpose of the filibuster?
2.     What is “cloture”? Define its process in your own words.
3.     What is your appraisal of the filibuster?