Bush, Frist Did Not Dispatch Graham & DeWine to Make a Deal

RUSH: I'm going to mention this because -- and I saw the report that I'm going to talk about. It was on FOX News last night at the top of the show on Brit Hume's 6:00 show on Fox, and I saw it, and I said, "Well, okay. The spin has begun," is my reaction to it. But now I've been getting e-mails today from people who believe it. So I decided to check it out. The top of the program last night, Major Garrett reported. Now, this is not a criticism of Major Garrett. Major Garrett reported that he was told by senior Republican sources that Senators DeWine and Graham were dispatched by Senator Frist and the White House to cut the best possible deal on judges. You understand this? Fox reported that Mike DeWine and Lindsey Graham were sent to that meeting chaired by McCain and Warner, by Frist and the White House, to cut the best possible deal on the judges. Now, if that were true, it would mean that Frist admitted he didn't have the votes. "Get your ass over there, make a deal, Lindsey. Get over there, Senator Graham and Senator DeWine and make a deal." So I said, "Okay." This was the first bit of spin that I had been treated to since this all happened, so I decided to check into it, and to the best of my ability to check in and verify this, it seems that this assertion is false. It seems that it is totally false.

That neither Senator Frist nor the White House had anything to do with this meeting, and that they certainly did not dispatch Senators DeWine or Lindsey Graham over to the McCain meeting to cut the best possible deal on judges. Now, if you wonder: "Okay, well, who is this source, who is this senior Republican source?" Well, to find out who the senior Republican source is, it might be helpful to consult the transcript of the report on Fox last night -- and when you look at the transcript of the report, you see that Senator DeWine is portraying himself as having saved the president from a devastating defeat. Now, that's the opposite of what happened and we all know it. Senator DeWine took a win on the filibuster issue and messed it up, and apparently he's trying to rewrite history in order to deflect the heat. Krauthammer has a column today that echoes what many of us have been saying all week that's right on the money. So here's the relevant portion of the transcript of the report on Fox last night. Senator DeWine: "No one knows how to vote on the constitutional option would have come out. We might have won; we might have lost. If we lost, it would have been devastating for the president, devastating for the president when he tried to get a nominee up here for the Supreme Court. Everybody knew where we were coming from, and you know we insisted that this is what the deal had to be. It cleared the way for a lot of the president's agenda other than the judges to move forward, so I think, you know, we got a lot. We really didn't lose anything."

Yeah, of course you didn't lose anything, except the nominations of William Myers and Henry Saad, and maybe five other judges. It could be that only three of these ten will ever see the light of day. So DeWine is portraying himself as having saved the president from a devastating defeat here in the midst of a report that senior a Republican source says that Senators DeWine and Graham were dispatched by Senator Frist and the White House to cut the best possible deal. Now, there's other spin going on as well about all of this, but none of it is this. I mean, every version of spin is its own self-contained individual story with no relationship to any other story or no other link. What does this mean? It means that the signatories to the deal know that they messed up, and they're running for the tall grass now, and they're trying to make the blame shift from themselves to elsewhere, all the way from Frist knew he didn't have the votes and told the White House and the White House told us to get over there and make a deal, all the way to... Basically, at the root of it, I think all the spin is basically about how we were saving the president. We were doing what we could to save this because it was going to do down in a humiliating defeat, ta-da, ta-da, ta-da, ta-da, ta-da -- and of course what's wrong with this spin, aside from the fact that it's spin -- and what's caused the spin to take place is the Bolton business.

"Did you see what Lindsey Graham said about the Bolton filibuster? 'Well, this is what's disappointing. The spirit of the deal was that we can do better if we all try.' I don't need to say anymore, folks."

Two things have caused the spinning to start: the Bolton business and the outcry, the outrage of anger and protest emanating from the Republican base. The people that elected these people are furious. They are still furious. So the spin is related to both the Bolton -- because the Bolton episode yesterday, even though I will admit it's got nothing to do with the judge deal, it does have a linkage to the judge deal because one of the reasons for the deal was supposedly to "get the Senate back on track doing the people's business," blah, blah, blah, and it was also said that this is going to clear the way for Bolton. They said this would clear the way for Bolton, and look what happened! Bolton's being filibustered. Oh, I'm sorry. I'm sorry. It's not a filibuster. They're "delaying the vote." Shame on me, folks! I didn't adopt the correct media language. It is a filibuster! Anytime you have a cloture vote, which is what happened yesterday afternoon, anytime you have a cloture vote, you've got a filibuster going on. I don't care what the press calls it. The press will not use the word "filibuster" because the Democrats have some fear, too. The evidence is clear that they are filibustering and obstructing and stopping everything, but this was all predictable.

We know who the Democrats are. A Democrat is a Democrat. A liberal is a liberal. A tiger is a tiger. We knew what they were going to do. We knew that the deal emboldened them, and from what I'm hearing -- and who knows what's factual and what isn't -- from what I'm hearing, the Republicans had a deal, Frist had a deal with Dingy Harry that there would be the 60 votes to get cloture and move on and vote on Bolton. They thought they had so many more than 60 votes they let Specter leave early. Specter, you know, is undergoing chemotherapy for lymph node cancer, something like that, and he left for his Pennsylvania home early before the vote yesterday, and they thought they had plenty of votes, enough to let Specter go early, that his vote wasn't needed. The assurance that Frist had from Dingy Harry himself, and of course Dingy Harry has now screwed Frist twice in one week. Frist has been shafted twice in one week, and you can't blame this all on Frist. I mean you can, maybe you can blame some of it, but let me give you -- I've been talking about LBJ and how he ran the Senate with an iron fist when he was in the Senate and did so at least with his own party when he was president.

RUSH: All right. We have a montage of DeWine, Senator Mike DeWine on the Fox report that I was talking about at the beginning of the show last night. Let me set this up. This is a show on Fox, Brit Hume show top of the hour last night at 6. It's a Major Garrett report that he was told by senior Republican sources that Senators DeWine and Lindsey Graham were dispatched by Senator Frist and the White House to cut the best deal possible on judges, and I said, "Well now, if that's true, that's one of the biggest news breaks and stories in the world," and I dug deep today, and I have assured myself that this is so far from the truth that it doesn't even deserve speculation. So in that case, okay, well, who's the source? Who are the senior Republican sources for this? And we've put together a montage of Senator DeWine in the Major Garrett story yesterday and this is it.

DeWINE: No one knows how the vote on the constitutional option would have come out. We might have won. We might have lost. If we lost, it would have been devastating for the president. Devastating for the president when he tried to get a nominee up here for the Supreme Court. Everybody knew where we were coming from, and, you know, we insisted that this is what the deal had to be. It cleared the way for a lot of the president's agenda other than judges to move forward, so I think we got a lot, and we really didn't lose anything.

RUSH: Now, aside from the substance of this, you hear in this bite that DeWine openly suggests, or should I say references the possibility that the vote would be lost, that Frist didn't have the votes, and they had to go over there and make the best deal possible. So when you couple that with this report from Major Garrett -- and I'm not ripping Major Garrett so please, don't anybody call Fox. I'm trying to figure out who this source is that told him that DeWine and Graham were dispatched by Frist and the White House to cut the best possible deal, because that's huge spin. You know, that's huge, and it sounds like that's what DeWine is saying happened, and he doesn't mention Frist or the White House, but he said they had to go in there and make the best deal we could. Now the Senate is going to move on. The Bolton vote last night is evidence that that's not true, that the president got his agenda going. I don't know what these guys are thinking. Are the Democrats just going to announce, "oh, wow, okay, let's go pass Social Security, Mr. President"? I clearly do not understand where these guys are coming from, but there's no party discipline. That's for sure.

RUSH: Laura Lynn in Cincinnati, nice to have you on the program. Welcome to the EIB Network.

CALLER: You know, another consequence of DeWine's betrayal here with the filibuster matter is the effect that it's had on his son's campaign. His son is running here in the second Congressional district trying to fill the very big shoes left open by Rob Portman, and I'll tell you, the dialogue around our community at least is, you know, he uses the name, he uses dad's money, he's got the political machine behind him that pushed him to the forefront, and, you know, it just leads us to believe that we're going to get the same nonsense in the House as we have in the Senate, and I think it's really hurt his campaign here.

RUSH: I've seen speculation that that might be the case. Your phone call kind of adds impetus to the notion that it could. We'll just have to wait and see. This is something that's not going to be known until election day, but clearly it's something that Senator DeWine will hear himself, and will give thought to. But look, it's too late. You know, look, my friends, I hate to sound like a broken record on this. They make the deal when? On Monday. On Monday night they're all praising themselves as independent mavericks, right? They're doing the best thing for the country. They saved the country. They "saved the republic." They saved the Senate, and now we can get back to doing business in the Senate. "Kids are dying in Iraq." Okay. The deal falls apart. Now, make no mistake it's fallen apart. This comity and the goodwill that was supposed to come out of this meeting was officially slam-dunked yesterday in a Bolton filibuster. Now, isn't it interesting that all of these participants -- and let's just stick with the Republican side on this, because it wouldn't have happened without them, all right? All the Republican participants said, "We acted independently. We did what is best for our country. We're not really moderates. We're not this, we're not that. We just did what's best for the country. We saved the Senate! Comity, staid tradition in the Senate. Protecting the rights of the minority. We need to make sure that we can get back to doing the nation's business. Kids are dying in Iraq. We got to go back and work on Social Security."

Okay. Then the deal falls apart, and they're all blaming everybody else for the deal. "Well, the White House set us up. The White House and Frist, they knew they didn't have the votes. We had to go up there; we had to try to save the day." Isn't it interesting when the deal first gets announced... Somebody in the press or in one of the blogs somewhere had a great characterization of all these Republicans not even able to go to sleep Monday night in anticipation of their profiles in the Washington Post style section on Tuesday. So they get up like it's Christmas morning, looking for their great profiles to show how independent they are, then the deal goes south and now it's everybody else's fault, and some are saying, "You know, we're surprised. We're saddened. We're saddened and surprised that this happened." Some of them are saying that, talking about the breakdown here of civility in the Bolton circumstance.

Cloture is a substitute for unanimous consent to take the vote. The only thing required in order to delay a vote is to withhold consent to take the vote

You are correct.

Unanimous consent gave birth to the filibuster.The cloture rule or agreement replaced the filibuster.

The difference between the two is that the filibuster took place on the floor of the Senate and was subject to the rules of the floor.

When items where passed in the committees by simple majority they went straight to the floor for debate and action.

The weapons the Senators who objected had to use was the power of persuasion and the filibuster.

The filibuster was self-limited by the physical requirements. I think the longest was 40 something hours. then the item had to be dealt with in an up and down vote by all senators.

All other Senate business had to wait until the item on the floor was dealt with one way or another. The Senate had to act on the business before it.

It was accepted or rejected by simple majority except for constitutional exceptions.

When they rewrote the senate rules and adopted the cloture rule instead of filibuster they placed a barrier between the committee and the floor.

They also raised the requirement for passage for whatever business 17 senators decided to from simple majority to super majority.

They also went from a procedure that was physically self-limiting to something that technically could be delayed indefinitely.

Hence you have a nominee who had passed the committee and had the floor votes being held by up 17 senators for four years.

The Senate by adopting the cloture agreement and allowing it to be abused has usurped the other branches and taken power unto themselves that is not granted by the Constitution.

They have said to the other branches ,if you expect to get anything or anyone buy us you had better be able to please 60 of us are forget it.

This is strictly against the Constitution.

I would like to see the cloture rule abolished and a return to the filibuster as it was.

Then the only time you would see this take place would be when it was really needed, not simply for petty obstruction type politics.

These old lazy blowhards like Byrd and Kennedy couldn't stand up for three hours much less thirty.

Certainly they wouldn't want stay away from the girls and the booze that long.

Remember when Bush was silent during the Democratic primaries in '04? Everyone kept urging him to play his cards. He didn't until the time was right. He'll get his judges and probably increase his Senate Majority in '06.

Remember when the House and Senate passed Campaign Finance Reform? Remember when everyone was sure the President would veto it? Remember when he didn't, but instead signed it into law? Remember how Rush Limbaugh kept insisting that at the first opportunity the Court would strike it down as unconstitutional? Remember when the court didn't do that?

Remember when the President said of the Terri Schindler-Schiavo murder-by-starvation/dehyudration situation, "It is better to err on the side of life"? Remember how he then erred on the side of her death?

Does anyone here remember that our system of government was set up with checks and balances for the very reason that men are prone to the corruption of power, the love of money, their own way rather than God's way? Can anyone here really expect that changing the judges is the whole solution? If you think so you are in favor of the rule of men over the rule of law. Does no one wonder why the constitutional provision for review and impeachment of judges is not only not being used but is not even being mentioned?

Unanimous consent gave birth to the filibuster.The cloture rule or agreement replaced the filibuster.
The difference between the two is that the filibuster took place on the floor of the Senate and was subject to the rules of the floor.
In any group meeting, the best situation is have every body agree they are ready to vote. That is unanimous consent. Most parliamentary bodies have a mechanism to get to the vote, called "Move the last question." The margin for passing that motion can be set by agreement of the body.
The form is generally, "Okay, we've talked enough. I move we vote on the question." The US Senate has such a rule from 1789 to 1806.

VIII. While a question is before the Senate, no motion shall be received unless for an amendment, for the previous question, or for postponing the main question, or to commit it, or to adjourn.
IX. The previous question being moved and seconded, the question from the Chair shall be: "Shall the main question be now put?" And if the nays prevail, the main question shall not then be put.
http://rules.senate.gov/history.html

Oh - before I lose sight of it, my assumption is that you equate the term "filibuster" with a Senator holding the floor and talking. TEchnically, the term "filibuster" is applied to any parliamentary tactic that delays the action of the body. Filibuster can take many forms - but for this post I'll adpot the narrow meaning that seems to be assigned.
You are just wrong that cloture replaced "the filibuster rule," or "the floor rule" or some similar device. While it is true that delay of action can be obtained by taking the floor and holding it, that is not the only mechanism. Nor has it ever been.. If you haven't read the Gold-Gupta article, I highly recommend it. It's tough slogging in places, it doesn't well illuminate why "hold the floor and talk" was never the only way to stall action; but it has a good historical overview of the institution of the cloture rule.
The cloture rule was put in place becuse the Senate refused to vote. Not because the Senate talked too much.
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf <-- Historical Summary
The filibuster was self-limited by the physical requirements. I think the longest was 40 something hours. then the item had to be dealt with in an up and down vote by all senators.
All other Senate business had to wait until the item on the floor was dealt with one way or another. The Senate had to act on the business before it.
Partly right, and partly wrong. The length of time an individual can hold the floor is indeed limited by biology and stamina. But there is not, and never was a "filibuster rule." I've been looking for such a rule for about two months, and haven't seen it. If you know of such a rule, do me the kind favor of providing a citation. To the best of my knowledge, the only mechanisms available to get to the vote are unanimous consent and cloture - there is another mechanism for treaties, but that does not involve a Senator holding the floor.
On the point of the Senate having an obligation to act on the matter before it, that is generally true of any parliamentary proceeding. The matter has to be disposed of - some options are to vote on it, table it, and postpone it indefinitely. And here is where the Senate is abusing cloture, just as it abused unanimous consent to get to the vote in the time between 1806 and 1917.
They also raised the requirement for passage for whatever business 17 senators decided to from simple majority to super majority.
I think you are referring to the part of Rule XXII that says any 16 Senators can file a cloture motion. A cloture motion doesn't set the business of the Senate. A cloture motion is a substitute both the motion and the vote in the for unanimous consent to the "I move we vote on the question" process. That is, the Senate has no "I move we vote on the last question." Cloture fills that void with 16 Senators required to make the motion. THe 2/5th supermajority hurdle for getting to the vote is not per se a bad thing. As any rule, it is only bad when it is used for something other than its intended purpose. But the rule does not make anybody talk.
Hence you have a nominee who had passed the committee and had the floor votes being held by up 17 senators for four years.
It is impossible for 17 Senators to hold up a vote on anything. Any 16 Senators can file cloture, and the motion must be accepted, and the motion must be voted on. If 60 Senators vote in favor of cloture the vote on the underlying matter will be held.
The Senate by adopting the cloture agreement and allowing it to be abused has usurped the other branches and taken power unto themselves that is not granted by the Constitution.
That isn't true either. The Senate can sit on its hands, but ONLY in the area of legislation, without affecting the President or the Judiciary. I agree compleletly that when the Senate refuses to give advice and consent to a nominee, the Senate is violating the Constitution. It would be doing the same if it refused to vote on a treaty or refused to render impeachment judgement.
I would like to see the cloture rule abolished and a return to the filibuster as it was.
Cloture is not per se good or bad. It is a legitimate device to permit Senators more time to decide how they will vote, or more time to persuade others with reason (as opposed to persuading them with delay). It is the abuse of cloture that is bad.
The Senate has rules for handling treating and nominations. The treaties rule (Rule XXX) has language that prevents cloture abuse, and forces the Senate to render a conclusion to the treaty before it. The nominations rule (Rule XXXI) could be similarly changed. That way the Senate would retain Rule XXII, which clearly is designed to apply to legislation. Read the rules. Read them again. Read them a third time, slowly.
See my profile page -> http://www.freerepublic.com/~cboldt/ for a bit more.

Corrections welcome - with citations or directions to citations.

I think I've wrapped my arms around your description and argument, but may misunderstand it. Corrections and clarifications to my summary will be appreciated.

I've summarized and parphrased your argument into my own words (not meaning to put words in your mouth), and some of the reasons I think the fails, below.

The assertion made in post 69 is that changes to Rule XXII (in particular, the hurdle for invoking cloture), in combination with the party split in the Senate, discourages a proponent from holding the floor in all-night sessions. The rationale is that when the hurdle for passing cloture is derived from "the number of Senators chosen and sworn," the proponent can't have enough votes to pass cloture in a "snap vote" even if the opposing side leaves the floor. The conclusion is that if it isn't possible to win, why bother?

But if the hurdle was different, if the rules were like they were sometime in the past, the Senators WOULD pull all night talkathons. To expand on this, the argument posits that if the hurdle for passing cloture was based on the number of Senators present and voting (as opposed to being based on all Senators), the proponent could hang out on the floor until his side has the requisite majority of Senators present and voting, and could win a vote on a cloture motion.

The argument invokes quorum in combination with a hurdle based on "present and voting" to force a certain number of the opposing side into the Senate chambers. It is assumed that the proponent will provide quorum. The number of proponent members determines the number of opponent members required to prevent losing the snap clouture vote. With a quorum of 51 members (all proponents) and a 3/5ths present and voting rule, the opponent must field 35 members in order to have 2/5ths plus one. If the proponent fields 55, the opponent must field 37, and so forth.

One fallacy in all of this is that NO vote is done by surprize. Once the Senate agrees to vote on a matter, the timing is scheduled on unanimous consent. The timing of taking a vote is not, never was, and should not be determined by which side wins a stamina contest. There is no such thing as a "snap cloture vote." There has never been a serious recommendation that a deliberative body be driven by a process that encourages winning by stamina instead of winning by reason.

Another fallacy, pointed out in an earlier post, is that the rules NEVER provided for a 3/5th of all members present and voting threshold to invoke cloture.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.