Let Them Filibuster: A Senate rules change may not be wise.

National Review Online ^ | December 15, 2004 | The Editors

[xsysmgr]

Democrats have waged an "unprecedented" campaign against Bush's judicial nominees — to quote an accurate observation that Democratic senator Jon Corzine made in a fundraising letter. They have denied up-or-down votes to several Bush nominees who had the support of a majority of senators. They have made scurrilous charges against nominees. Priscilla Owen was said to be an enemy of women because, as a judge in Texas, she had interpreted a state law to grant parents a stronger right to be notified of their children's abortions than Democrats would like. Democrats sought to breach the confidentiality of Miguel Estrada's work for the Justice Department in a desperate search for embarrassing material on him. The effect of the Democratic campaign, and probably the intent, has been to intimidate some qualified conservative jurists from putting themselves in the line of fire.

So we sympathize with those Republicans who have been proposing to change the Senate rules to make it easier to confirm nominees who have majority support. Nevertheless, we think the idea is a mistake.

Under current Senate procedures, it takes 60 votes to end a debate and move to a vote. It takes 67 votes to change the procedures. Some conservatives argue that the 60-vote rule to cut off debate, when applied to judicial nominations, violates the Constitution. The "advice and consent" of the Senate, they say, implies that it should only take a majority of the Senate to confirm a judge. The use of the filibuster effectively creates a supermajority requirement, which, on this argument, is unconstitutional. It is, in our view, an implausible argument. The Constitution does not forbid the Senate from setting its own procedures.

Republicans should insist on
political accountability for filibusters
instead of a rules change.

Conservatives are on stronger ground in arguing that a simple majority of senators should be able to rewrite the rules. But whether it would be prudent for Republicans to act on this insight is another question.

It may be wiser to insist on political accountability for filibusters of judicial nominees than to change the rules to prevent them. In the 2002 and 2004 elections, Republicans took Senate seats from the Democrats. The Democrats' filibusters against Bush's judge picks were an issue in all of them.

The consequences might be worse for the Democrats in the case of a Supreme Court vacancy. Only small portions of the electorate have paid attention to the political battles over appellate-court nominations. The public will be paying attention during a Supreme Court fight. Many voters will root for Bush's nominee and many will root against. But it is unlikely that middle-of-the-road voters will have much tolerance for attempts to block a vote.

Consider the Ashcroft precedent. Liberals were incensed over Bush's nomination of John Ashcroft to be attorney general. They were energized by their strong showing in the 2000 Senate elections and angered by the Florida recount. They demanded a filibuster of Ashcroft. The Democratic Senate leadership refused to take this step, rightly calculating that the public reaction would be negative.

The Democrats will probably not be able to resist the liberal pressure to wage a filibuster when a Supreme Court vacancy arises. But at some point, we strongly suspect that the filibuster would collapse. That collapse would do more for Republicans — and for the cause of confirming conservative judges — than a rules change. (A rules change might demoralize Democrats, but it would also enrage them. An unsuccessful filibuster would just be demoralizing.)

Republicans could change the rules, but they have no constitutional obligation to do so. And the best moment for changing the rules, during a Supreme Court fight, would also be the moment when a change would be least necessary. So let the Democrats filibuster — and pay the price.

[BJClinton]

For those voters where abortion is not a litmus test holding up Senate business for one issue will be a big turn-off. It's up to the GOP to exploit it. Besides, what are the odds we could get 67 votes to change Senate rules?

[mrsmith]

When the Democrats changed the rules by the "nuclear option" they tabled the change they made and then negotiated a rules change with the minority that got 2/3 of the vote. That's how we'd get 2/3 votes too- by forcing them to vote for it.

EG: We could have a ruling by the majority that filibusters are not constitutional on nominations and then negotiate a rules change that allowed them for ambassadorial appointments or lower court appointments- or some other exceptions.

[ScottM1968]

Can you please describe why cloture matters?

To even get cloture, the Senate needs 60 votes. Otherwise, the filibuster would need to continue around the clock as long as the Senate leader deemed necessary, as I understand it.

If the Senate needed to be in session around the clock, I can guarantee that some Democrats would fold and stop the filibuster via cloture.

[Republican Wildcat]

You understand it incorrectly. Nothing can force the Democrats to talk. If the Senate was going to continue around the clock, it would be the Republicans forced to speak...and they aren't the ones trying to block the nominees, so they would just look silly.

[BJClinton]

I wonder if Frist has the cojones for that?

[Dog Gone]

NRO is wrong about this. Frist needs to tell the Democrats that we'll go nuclear unless they cave. And mean it.

If the roles were reversed, I don't think they'd even give us the opportunity to cave.

[ScottM1968]

The filibuster, to continue, must be done 24 hours a day if the Senate is in session the whole time.

Cloture votes would put a limit on additional filibuster time of 30 hours more.

Roll call votes can be requested with only a handful of people present, to force the rest to show up at any time.

That would get old to all of them. The filibuster would stop and then a vote on the real issue could be had.

http://www.senate.gov/reference/glossary_term/quorum.htm

[Republican Wildcat]

Yes, I know that. That doesn't explain your contention that the Democrats should be forced to speak around the clock. If there is not cloture, that's all they have to do to block the vote.

[deport]

As soon as the number of Democrats in the chamber drops sufficiently, that is, about 15 of them go home, call all the Republicans back for an immediate cloture vote.

---

What do you do about the requirement of notification of a cloture vote?... isn't is 24 hours or maybe it's 48... In either case you can't just call the cloture vote as the rules now read.......

[ScottM1968]

No other bill could be voted upon until the filibuster ended. that includes the budget if it were up.

Otherwise, the issue being filibustered will come up for a vote.

If no other bill is allowed to enter debate and the debate is forced to occur around the clock on the judicial nominee being filibustered, the filibuster will be met with cloture because all Republicans and most moderate Democrats will find the filibuster to be folly.

Thus, the real vote on the judicial nominee will come up and the filibuster will end.

What about that seems confusing?

[WashingtonSource]

The people at the National Review are wimps, for starters. They can not think logically on most issues. That are dummies when it comes to both political tactics and strategies. Lesson Number One: When you have a winning hand, you don't throw it away. Period.

[Don'tMessWithTexas]

The issue is really pretty simple. The Senate can confirm the nomination of a justice to the Court by a simple majority. No dount about that. The problem is that in most parliamentary bodies, debate can end by a simple majority.

The US Senate is different by rule and tradition. In the Senate, each Senator has the right to unlimited debate. A cloture vote is a vote to close debate on move on to an up or down vote.

The filibuster rule has served the country well in the past, from keeping the US out of the League of Nations to keeping oppressive legislation from being rammed down the throats of the people.

I am not persuaded that demanding cloture on a judicial nomination is, necessarily, an unconstitutional infringement of a president's right to nominate and the Senate's role of advise and consent. It is, at bottom, a political problem with political consequences and political solutions. At 55 GOP senators (and at least 2 Dems willing to go with the GOP on nominations) it is more likely that Frist could induce 3 to 4 senators to vote for cloture in exchange for some favor.

[Don'tMessWithTexas]

The hairy part of a "full" filibuster is that it is hard on both sides because of the Senate's quorum rules. If a senator is speaking at 3:00 am and no one is on the floor, he need only suggest an absense of a quorum. At that point the clerk must call the roll. If a quorum is not present, the Senate would stand in recess, this would benefit a Dem on the floor at that time. This would conceivably be harder on the party in the majority (GOP)because they have to be prepared to withstand a sustained attempt to recess due to the absense of a quorum.

[ScottM1968]

Could it be more difficult on Republicans? Yes. However, the Democrats will have made some darn mad people in the process on both sides, hurting them for the future.

Additionally, since the filibuster will need to end (getting people to talk around the clock for months and not allowing other issues to be voted upon), the vote for the nominees will be made and 51 is all that is needed.

Let the Democrats scream about that. We will have our nominees and they will have chaos.

[Gritty]

Don't you need to weigh in on this?

[rcocean]

When has the filibuster served this country?

During the Civil rights era?

Funny, you have go back 90 years to find a good example.

It should be noted we stayed out of the league because Wilson refused to compromise and a majority of the people didnt want it. Which is why we stayed out of the league of nations from 1920 to 1945.

NRO is trying to pull a Gergen on us.

[penowa]

I just KNOW the Republicans will resort to not changing anything because they look at the past two elections and see doing nothing but whining about what the mean Democrats are doing as a winner, a twice proven winner that they plan to use again in '06 to gain seats. Unfortunately, if they listen to this lousy advice from NR, which is a good probability since they have yet to overcome their inertia since becoming the majority party, they are in for a BIG BIG surprise. A lot of us are sick and tired of their refusing to do anything but point fingers at the Democrats and we are very likely not to show up come the next election if they don't find a remedy for this problem and employ it NOW.

[Don'tMessWithTexas]

The beauty of the filibuster rule is that it slows down the momentum of legislation. Civil rights legislation is perhaps the most notable example. While many against the civil rights bills were bigots, many of those in the opposition were against the federal government stepping on matters they felt that law and tradition had relegated to the states.

Any time Congress is hampered in its attempts to improve our lives and get in our wallets is alright with me. It is also a tool that can protect the minority. Since politics moves in cycles, there will likely be a day when the GOP is again in the minority. I would like the GOP to have the same weapon in its arsneal if necessary.

The underlying quetion is whether it is unconstitutional to apply the rule in cases where a judicial nomination is at stake. While many have trashed the rule, few have made a compelling argument that it is being unconstitutionally applied. Until you can convince a conservative that supports the President and his judicial nominees, how are you going to sell it to the nation?

[Republican Wildcat]

If you truly believe that, with all due respect, you don't understand politics. Under that strategy, rightly or wrongly, the Republicans are left holding the bag. It's a loser.

[Congressman Billybob]

This article makes two serious mistakes in constitutional analysis. The first is to say that document "implies" a majority vote when the Senate gives its "advice and consent" to approve a judicial appointee. Article II, Section 2, clause 2 is explicit on the one Senate function there which requires a supra-majority vote (treaties, 2/3rds).

Every Congress since the First has concluded that a majority vote is what is required for Senate approvals for presidential appointments. Every time the Supreme Court has approached the same subject, it has reached the same answer.

The authors fuzzed this point because if they'd been accurate about the first point, the problem with their second point would have become obvious. Of course the Senate (and the House) have the power to establish their own rules. But neither, the Senate in this case, has the power to write a rule which violates the text of the Constitution.

This example will slam the point home. What if the Senate adopted a rule that 90 Senators had to vote to approve a treaty? According to this article, that would be Constitutional because the Senate can establish its own rules. But that rule would clearly violate the first provision of Article II, Section 2, clause 1, on treaties.

That is exactly the defect of applying the filibuster rule to confirmation of judicial nominees. The Constitution says that a majority of Senators is sufficient. Therefore, the filibuster rule (Rule XXII) likewise violates the Constitution. And the Senate, acting on its own, has zero power to amend the Constitution.

In short, this article is not a logical analysis, but merely self-serving sophistry to reach a preferred conclusion. It should not be taken seriously as anything more than a political hope that the filibuster would continue to apply in this situation.

QED.

Congressman Billybob

Click for latest, "Should the Iraqi Election be Delayed?"