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.

[Zack Nguyen]

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.

You know, that's a good piont. I'll have to chew on that for awhile.

[Congressman Billybob]

No, the filibuster need not be abolished for all times and purposes. The "nuclear option" would eliminate the filibuster for judicial nominations, as the Constitution requires, but would leave it in effect for normal legislative purposes.

See my earlier, detailed post on that.

Billybob

[rcocean]

"The beauty of the filibuster rule is that it slows down the momentum of legislation - Any time Congress is hampered in its attempts to improve our lives and get in our wallets is alright with me."

Fine. What does this have to do with filibusters of presidential appointments? Nothing. Appointments aren't legislation nor do they have anything to do with your wallet.

As for the "lets not weaken the filibuster it might help us when we're in the minority." If you think the liberals are going to respect a conservative minority in the future because XX years ago we (the conservatives) showed respect for the liberals - you are very naive and your view is unsupported by history.

[ScottM1968]

Similar words were said of Newt's "Contract With America". But he went forward and got most of what he wanted.

He also did something unusual--he encouraged Republicans to give their raised monies to other Republicans to help them win more offices.

I don't give a damn about following what is "politically correct".

I care about what is right, true, and best, with the rest to be left behind. What I am stating is reasonable if not the current state of affairs. Democrats can take a stand but we can't?

True leadership throws conventional thought to the side.

Perhaps I'm speaking from the perspective of a leader and you are not.

[Congressman Billybob]

Your post demonstrates a second violation of the Constitution in this process. By specifying a two-thirds vote to expel a member, but not for writing its own rules. Article I, Section 5, clause 2, therefore makes it clear that establishing rules is done by a majority vote.

The current Senate rules require that they remain in effect and unchanged, unless a supra-majority votes to change them. This rule, therefore, is also a violation of the Constitution. It also violates Jefferson's statement on the logic of any legislature, "No legislature has the power to bind the next legislature."

Bottom line: the nuclear option could be used when the Senate organizes itself, to eliminate the binding over rule of the Senate, as well as being used on the filibuster rule.

Billybob

[JohnBDay]

This is really much ado about nothing IMO. On something as high profile as the Supreme Court, there will be at least five Red State Democrats voting for cloture.

[Republican Wildcat]

No, you are speaking from the perspective of someone who does not know what they are talking about.

[Southern Federalist]

Unlike some posters, I like NRO, but this is one of their periodic attacks of textbook conservatism. They read in a book that conservatives are supposed to be against change, so they conclude that they should be against this one. But Edmund Burke's most conservative point was that you can't govern a political community out of a book, by "theoretic dogma."

By the time we've held enough Dems "politically accountable" for the filibusters, Bush's second administration would be over. In the meantime, he may well have been forced into bad compromises just to keep the SCOTUS functioning, thus losing the opportunity we may get up to change the court in far-reaching ways.

Another forty years of judicial legislation, and we will certainly have plenty of change to oppose -- gay marriage and legal euthanasia for a dead cert -- all for the sake of preserving a Senate rule which Republicans can't use anyway, not until the power of the MSM is destroyed completely.

[Gorjus]

"Until 1917 there was no way to end debate on an issue (within the Senate rules)."

That is just wrong.

That is just right. You can find all sorts of things on the net. But when selecting which sources to consider authoritative, it would seem to me that the official US Senate site might at least be considered. You should visit there sometime.

As reported at the official Senate site: http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm
Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as "cloture."

And yes, I know the rule has been further modified, such that Rule 22 now requires 3/5 vote of all sworn Senators. But it's still Rule 22, and it's still the change that put controls on unlimited debate.

Much of your source information is either outdated or irrelevant. It's true, for example, the Senators can 'call for the question.' But that's a motion asking for a vote, not forcing one. It can be rejected if the Senate desires to continue debate. Which, in the Senate rules, will be the case if even one Senator desires to continue debate, unless cloture is invoked.

[oldtimer]

Has George Soros bought the National Review?

[Leto]

I believe your wrong on this point. The minority is indicating that they want the debate to continue. Therefore the minority must continue the debate. When they stop the debate the vote takes place.

In the 60's IIRC the people fillibustering the civil rights bills were the ones doing the talking (KKK Byrd among them).

IIRC the the longest fillibuster lasted less than a week.


I think the rats should be forced to talk till they drop then hold the vote.

[Gorjus]

No, the filibuster need not be abolished for all times and purposes.

True.

The "nuclear option" would eliminate the filibuster for judicial nominations,[only]

You wish. But there's no guarantee of that at all. Once the dam is broken, where a simple majority can eliminate filibuster on any topic they choose, why in the world to you think the Dems would 'play nice' and not extend that new rule to whatever they want to ram through, the next time they're in the majority?

as the Constitution requires,

Here, you're just begging the question. You declare that this is about how many votes are needed to consent to an appointment. But it's not. It's about how many votes are required to close debate. That's a Senate rule - which the Constitution clearly allows them to make - which is applied to all topics before it even gets to a vote on the specific issue. As I said before, if they passed a rule that said consenting to judicial appointments requires a super-majority on the actual approval vote, that would violate the Constitution. But this is about ending debate, not the vote on the appointment itself.

In practice, it may amount to the same thing. But there are lots of cases where one part of the Constitution (in this case, Article 1 Section 5, granting to the Senate the authority to define their own rules for debate) provides authority that affects the way another part is exercised. That doesn't make the part you (or I) don't like unConstitutional.

I think the point of the original editorial in NRO is still valid. The Republican leadership in the Senate should force a real, continuous debate filibuster. It should shut down the government (at least as far as Senate business is concerned) until they vote. The spectacle of Dem obstructionism would get media attention (however reluctantly the MSM wants that) and if the nominee is qualified (as Bush's have been) they would have to explain why they are holding up a reasonable nominee. In the end, I do believe that will cost them enough political capital that they won't spend it on reasonable appointees.

But, if a Dem President with a Dem majority in the Senate (which will again happen, some day) tries to force through a truly extremist candidate like Lani Guiniere or (God forbid!) Hillary Clinton, the Republicans could still filibuster.

In the end, it comes down to whether you believe the Republicans are more in line with the majority of the nation, such that when the Dems filibuster a nominee the people will consider them obstructionist - or whether you believe that in the future the Dems will never try to force through an extremist. I'm much more concerned about the latter.

[rcocean]

Your mistake is that somehow believing that if we decide to respect the filibuster that we will preserve if for future use by conservatives in the future.

The fact is that, if the Repubs ever become a minority the Liberals WILL NOT HESTIATE TO ELIMINATE THE FILIBUSTER.

And MSM will support every step of the way. Whether the Repubs keep or kill the filibuster has absolutely no bearing on what the Libs will do in the future.

The liberals have only motto: " Just win Baby"

[mrsmith]

Thanks just the same but I find MacClay and Jefferson authoritative.

I'm frankly surprised anyone would publically argue otherwise and expect to be taken seriously.

But you're free to continue to believe "all sorts of things on the net." that you wish to.

[Gritty]

Thanks for weighing in, Congressman. As is usual in these Constitutional matters, after you have taken a swing at the bag, there is not much left to be pummeled.

Now all that needs to be done is have the Senate follow the clear letter and spirit of the constitution.

But if one thinks Harry Reid and his gang will do that, one is smokin' somethin' really cool with Marion Barry.

The real question is, can the GOP "majority" somehow muster enough backbone to make the plain language of the Constitution have any thing to do with their deliberations and rules?

Frankly, I'm not holding my breath. Jellyfish don't usually evolve spines. Neither do Senate Republicans, who may be the other most squishy species on the planet.

[Lancey Howard]

GO NUCLEAR! (Response to NRO Editorial)

[Don'tMessWithTexas]

I'm having a hard time getting around the argument that the filibuster is unconstitutional when used on judicial nominees. Judicial nominees can be confirmed on a majority vote. That is not the problem.

The problem is that Senate rules, unlike the House, allow for unlimited debate. Rule 22 allows for the closing or cloture of any debate. The goal of any filibuster is to keep enough senators willing to vote against cloture to keep a matter from coming up for a vote. Once cloture is invoked, the matter can go to the floor for an up or down vote.

If a Dem or GOP senator wants to filibuster a judicial nomination, they are not preventing an up or down vote. They are exercising their right to unlimited debate. Similarly, a filibuster of any bill does not prevent an up or down vote.

[Gorjus]

I find the official Senate history authoritative. We're not talking opinions (of which Jefferson's is indeed interesting) but facts on what the rules of the Senate were and are, for which the official - and current - Senate information seems more credible than opinions from 200 years ago. I'm frankly surprised that anyone would argue otherwise and expect to be taken seriously.

[Gorjus]

It seems we are in agreement. Do you not see what I wrote as indicating the same thing? Or are you just confirming your agreement?

[Gorjus]

In general, I agree with your concern. Once again, it comes to the political price that might have to be paid. If they made such a naked power grab - and in particular, for the purposes of confirming an obvious extremist - there would be a price. It's already been shown by the fact they keep losing seats due to their current obstructionism.

What the attitude of the country would be like at some time in the future - particularly one in which we postulate a Dem President and Dem majority in the Senate - is not possible to predict, of course. Nonetheless, I will favor things which slow down the deliberations of Congress to a scale that allows the political process to work. In other words, no action on nominees until after an election (giving the people the opportunity to remove obstructionists if they truly feel they are unreasonable) is preferable to horrific action taken quickly.