Filibuster Roundup - History of Senate Filibuster Rules

Bob Dole says that amending the Senate's rules would be unnecessary if only Senate Democrats would forswear use of the filibuster.

Writing in the Wall Street Journal, Pete Du Pont recounts that many Democratic Senators have had a change of heart when it comes to the propriety of filibusters:

"Other Democratic senators have had similar changes in belief: Joe Biden and Robert Byrd, Tom Harkin, Ted Kennedy, Joe Lieberman, Pat Leahy, Chuck Schumer and their erstwhile colleagues Lloyd Bentsen, and Tom Daschle have all vigorously opposed the use of the filibuster against judicial nominations. Mr. Schumer was for voting judicial nominations "up or down" without delay.

Mr. Leahy flatly opposed a filibuster against Clarence Thomas's Supreme Court nomination: "The president and the nominee and all Americans deserve an up-or-down vote." Mr. Harkin believed "the filibuster rules are unconstitutional," Mr. Daschle declared that "democracy means majority rule, not minority gridlock," and Mr. Kennedy that "senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate."

But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and it is different. Mr. Leahy has voted against cloture to end filibusters 21 out of 26 times; Mr. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees.

There is no mention of a Senate filibuster in the Constitution and, for much of its history, the Senate rules did not even contemplate such a maneuver.

In 1806, for the first time, the Senate amended its rules so that a unanimous vote was required to end debate. In essence, this allowed a single Senator to prevent the majority from voting on any matter.

As an excellent summary on the Senate's web site recounts (http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm), the Republican minority used a filibuster to oppose President Johnson's appointment. At hearings on the appointment (which were the first in which as Associate Justice attended and testified) Justice Fortas was forced to admit that he briefed the president on secret Court deliberations, had pressured senators who opposed the war in Vietnam and received a secret stipend (equal to 40% of his Court salary) to teach an American University summer course.

These revelations eroded support for Fortas' nomination and President Johnson was ultimately forced to withdraw the nomination.

It would better to abolish the filibuster entirely and put nominations and legislation on the same calendar as that in the House. Well it would end the practice of time-wasting in what is a pretty exclusive club but it would make Senators more effective and responsible. The U.S Senate is the only legislative chamber in the world with such a stupid parliamentary procedure giving the minority the wherewithal to hold a majority hostage by threatening to gum up the works. That's un-parliamentary as well as un-American.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

Senator Biden used a baseball analogy yesterday, saying the rules change was like a team leading in the 9th inning and then changing the rules to only allow 1 out.

I have a better sports analogy, that has the advantage of being directly applicable. We should all use this:

In professional Soccer, they have an interesting "gentleman's rule" regarding injuries. This isn't in the rule book, and in fact there is nothing to force a team to follow this tradition.

When a player is injured, the rules state that the referee will not stop play, but will wait for a dead ball situation. If the opposing team has control of the ball, they could take advantage of the man down situation. And if the team with the injury has the ball, they are torn between playing on and getting help.

That's the rule. But what actually happens is, if there isn't a direct play toward the goal (something the players judge on their own), whichever team has control of the ball when the injury becomes apparent KICKS THE BALL OUT OF BOUNDS.

This is not terribly remarkable in itself, except that doing so turns the ball over to the other team. So, continuing with the tradition, after the injured player is cared for, whichever team gets the throw-in will now THROW THE BALL TO THEIR OPPONENTS.

In other words, without any rules, they two teams work together for a reasonable outcome, each trusting the other to do what is right.

There are times when this occurs near the end of a game, when one team is down by a point. I saw a case recently where the losing team with a couple of minutes left had an injury while shooting on goal. The Goalie (who normally would delay for a while and then punt downfield) instead threw the ball out of bounds.

But now the opposing team, down by a point in an important game, has a throw-in near the other team's goal. This seems like it would be a dilemna, after all this is there last chance to win the game, and that is what they are paid for.

But there is no dilemna, because there is honor. The losing team threw the ball back to the goalie, and the game ended for them. Note that the rules certainly ALLOWED them to keep the ball. It is the TRADITION (and honor for the game) that made them do the right thing.

Also notice that if a team ever did the WRONG thing in a game, the opponent would punish them. First, nobody would EVER throw the ball out again for them, which they could clearly argue would be a "changing of the tradition". Clearly it would ruin the spirit of fair play of the game if oppoenents wouldn't put the ball out of play to help out a team with an injury. But everybody watching would realise that the evil team brought it on themselves for taking advantage of the rules and ignoring the tradition.

I hope you can all see that this is exactly what the Senate Democrats have done. There is a tradition where the minority is given power to extend debate, but in return the minority by tradition doesn't use that power to completely block the senate from action on judicial nominees (precisely why? because they aren't supposed to be POLITICAL).

The democrats have violated that tradition, for partisan political purposes. And now they yell because the other team won't "play fair". Well, honor is a two-way street.

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