Posted on 04/12/2005 1:31:48 PM PDT by FredTownWard
Washington is abuzz with talk that the Senate Republicans will deploy the so-called "nuclear option" -- in essence, violating the rules of the Senate to eliminate the possibility of mounting a filibuster against a presidential nominee -- in order to obtain the confirmation of a handful of President George W. Bush's appointments to the federal judiciary. Senate Democrats, naturally enough, are plotting a second strike: Through various manipulations of the Senate rules, they will bring the entire legislative process to a grinding halt. And rightly so. There's no particular reason why filibusters should be banned just for nomination votes, and there's certainly no justification for doing so in a way that violates the Senate's rules. The politics of the fight that would ensue are uncertain but probably winnable for the Democrats. The substantive outcome -- no passage of any bills of any sort -- is the best liberals can hope for, given the current correlation of political forces inside the Beltway.
There is, however, a better way. Democrats should counter loose talk of going nuclear with a proposal of their own: The Senate as a whole could vote, through proper procedures, to end filibusters on votes of all kind, allowing passage of any bill (or nominee) that can secure a majority vote. Republicans may reject the offer, of course. But if they do so, that will only strengthen the Democrats' hand politically in combating the nuclear option -- by demonstrating a fair-minded commitment to principle over short-term partisan advantage.
Alternatively, the GOP might agree. In the short term, this would produce bad results: confirmation for some bad judges. In the long run, however, eliminating the filibuster will be good for liberals, and Republicans will rue the day they decided to sacrifice a major prop of conservatism in order to put a handful of under-qualified nominees on the bench.
There is a basic asymmetry between the two big ideological forces in the United States. As the old saw goes, Americans are ideologically conservative but operationally liberal. They're suspicious, in other words, of new "big government" schemes; but once such schemes are put into place, they prove quite popular. Despite dismal electoral performance over the past 25 (or, if you prefer, 40) years, liberals do a very good job defending the gains of the past. The key liberal achievements of the past -- Social Security, Medicare, Medicaid, civil rights, environmental regulation, federal funding for education -- have all withstood repeated attack. Indeed, smart conservative politicians either avoid attacking them or, as with the Bush prescription drug and No Child Left Behind bills, embrace them. In their not-so-smart moments, conservatives launch frontal assaults (as during Newt Gingrich's attempted 1995 Medicare cuts or the current effort to privatize Social Security) and watch their public approval ratings plummet.
The liberal difficulty is what it always has been -- getting new stuff passed into law. The public's instinctive skepticism toward novelty is re-enforced by the fact that the American political system puts into place an uncommonly large number of veto points at which legislation may be blocked. New bills must pass two separate legislative houses, each representing different sorts of constituencies; acquire a presidential signature; and pass muster with the Supreme Court. The filibuster merely enhances this tendency, already an outlier in the democratic world. It's no coincidence that the United States is also an outlier in terms of having a relatively underdeveloped welfare state. The many sticking points in the legislative process were deliberately designed by the Founders to bias the political system in favor of conservatism. Speaking ill of the Founders is, of course, not something done in polite American political discourse, but such biases are nothing liberals should embrace.
A filibuster-free U.S. Senate will give the Republicans only minor advantages. The Democratic talking points arguing that they've only filibustered a tiny minority of Bush's judicial nominees are perfectly accurate. This, however, is the problem. Preventing the courts from being packed with bad judges is important. But it's happening anyway. The handful of judges actually being blocked by the filibuster aren't notably worse in substantive terms than the huge quantity that have gone through already; they're just a bit easier to mount a public argument against. Beyond that, the main things conservatives have been successful at passing during their moments of ascendancy are huge tax cuts. But tax cuts -- thanks to the arcane-but-important budget reconciliation rules -- can't be stopped with filibusters. Indeed, it's very hard to think of any major conservative legislation that's ever been stopped by a filibuster.
It is, by contrast, very easy to think of liberal initiatives that filibusters have blocked. Indeed, as conservative activist Jim Boulet Jr. has wisely argued in a memo to his comrades, the filibuster is crucial to conservatism. By his account, without it, majorities would exist to raise the minimum wage; reform labor law to make new union organizing easier; ban discrimination against gays and lesbians in employment; reduce greenhouse-gas emissions; and close the "gun-show loophole." I'm not a gun-control fan myself, but everything else on the list is a key priority. In the past, of course, the filibuster is most famous for its role in delaying the dawn of civil rights. Less well known is that it was integral to the defeat of Bill Clinton's health care plan in 1993. If liberals ever get another chance to go for comprehensible health-care reform, the filibuster will once again rear its ugly head.
At any given moment, the filibuster rule helps the minority party. Right now, that's Democrats. But taking the long view, the filibuster is bad for Democrats. Ideally, you'd want to get rid of it at just the ideal moment. But, realistically, that can't be done; only minority-party acquiescence will let it happen. Now's a good time for Democrats to show some rare appreciation for the importance of long-term thinking and let the right shoot itself in the foot -- rather than giving them yet another tool with which to rile up their base.
Matthew Yglesias is a Prospect staff writer.
Copyright © 2005 by The American Prospect, Inc. Preferred Citation: Matthew Yglesias, "Failure Buster", The American Prospect Online, Apr 12, 2005. This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. Direct questions about permissions to permissions@prospect.org.
Liberals are the ones who fought to change the laws regarding filibuster in the first place. Doesn't anyone remember "Grid lock"? Now they want the rules reversed because it favors them now. Any way the wind blows when you are a political opportunist.
Welll, it is as much a filibuster as anything else they call a filibuster these days. While I might enjoy the spectacle of forcing Democrats to mount a "real" filibuster, talking 'til they drop, I'd rather abolish the whole thing entirely. Of course I have no problem with Republicans doing it piece-meal, starting with judges.
Also, don't forget that holding up Presidential appointments because they may not agree with you politically is not one of the seven or so accepted uses of filibuster.
There's no particular reason why filibusters should be banned just for nomination votes, and there's certainly no justification for doing so in a way that violates the Senate's rules.
Maybe the reason why filibusters should be banned just for nomination votes is that the Constitution requires that the Senate advise and consent. Ignoring a nomination is unconstitutional.
The history of the filibuster is that for most (but not all) of the last two centuries it has been used in the Senate on LEGISLATION. (The House also had a tradition of unlimited debate at the beginning, when it was a small body about the size of the Senate.)
But the history of the Senate shows that regular use of the filibuster against judicial nominees is a creature of the 21st century only. For the two centuries prior to that, the Senate almost always -- in ten thousand instances -- did not apply the filibuster to judicial nominees, but instead affirmed them by majority vote only. This is the inconvenient fact that Yglesias, and other bigots like Senator Harry Reid, deliberately ignore when the speak or write on this subject.
NO ONE is suggesting ending the filibuster concerning legislation. In his pervasive dishonesty, this writer sets up and then attacks a straw man. For a much more honest appraisal of this situation, click below.
Congressman Billybob
Latest column, "Billybob's Speech for FR's March for Justice II"
Doing exactly what Senator Robert KKK. Byrd, CSA, did FOUR TIMES cannot honestly be called a violation of Senate rules.
What a great writer. "Washinton is abuzz..." is as dynamic a beginning as "It was a dark and stormy night..."
There is no particular reason filibusters should exist in the first place - the House of Representatives has no similar rule, and in fact, has a rule that limits any one Member of the House of Representatives to five minutes oral presentation.
The really nuclear option would be to FORCE the individual Senator or bloc of Senators to stand and deliver on the filibuster. If they have an objection, let's talk it out. If they only want to obstruct, keep them on the floor until whether through exhaustion or surrender, they finally sit down and a vote is taken.
Before they reach Hour 48, they shall have given up. Because they know that the same challenge awaits them on the next threat of filibuster.
Actually Matthew Yglesias "is suggesting ending the filibuster concerning legislation" whether honestly or not it is hard to tell. IMHO if Senate Democrats are dumb enough to follow his advice, Republicans should simply put the matter to a majority vote. It might not get 51 votes, but it would certainly get more Republican than Democrat votes; in fact I'd be surprised to see even one Democrat, including the one who first suggests it, actually voting for it. Thus, having called the DEMOCRATS' bluff, Republicans could move on to their much narrower proposed filibuster limitation.
In today's WSJ, on page A4, is "Republicans Fall Out Over Filibuster Issue" where Frist, Santorum, McCain, and Wagner each have prominent exposure.
From their comments ... please send each a matching set of doilies so that these ??? can retire from the field with their flags lowered!
I have heard the laughter now for years!
Keep in mind that according to most people Republicans already have the 50 votes they need to win this vote, and as long as they do, who cares what the excess RINO's decide to do? If Senator McCain wants to end any chance of his ever being the presidential nominee of the REPUBLICAN Party, so be it. As for the rest of the RINO's, all they have to do is look at how much fun Senator Jim Jeffords, Idiot-VT, is having to keep them from getting "switchy".
yeah,...there's alot of "double-dare-ya,... triple-dare-ya " stuff goin' on,...stay calm and focused , nervous nellies go find something you won't F**Kup,...spaghetti legged wimps , get outta the way , this is the "heavy lifting , shoulder to the wheel" we worked for,here we go,let's roll
The Byrd Option
The former Senate leader knew how to break a filibuster.
Monday, March 7, 2005 12:01 a.m. EST
West Virginia Senator Robert Byrd got into hot water last week for introducing Hitler into the Senate's already acrimonious debate on Democratic filibusters of President Bush's judicial nominations. Speaking of the Republicans' threatened "nuclear option," he said, "We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men."
Herr Byrd does get carried away, but more revealing than his rhetoric was the substance of his remarks, on which he elaborated in an op-ed article in Friday's Washington Post. Somehow in his excoriation of a tactic that would deny Senators "their right to free speech on judicial nominations," Mr. Byrd forgot to mention that he pioneered the practice.
The "nuclear option" is the scary-sounding name for a simple Senate rule change to stop the filibuster of appeals-court nominees. Ending a filibuster requires 60 votes--rather than the simple majority of 51 that was sufficient to confirm judges for all of Senate history until this Presidency. The idea is that if the Democrats filibuster another nominee, Majority Leader Bill Frist would ask for a ruling from the Senate's presiding officer that under Rule XXII only a simple majority vote is needed to end debate on judicial nominations. Assuming 51 Members concur--and GOP nose-counters say they have the votes--the Senate would then move to an up-or-down floor vote.
Changing Senate precedents by majority vote would be nothing new to Mr. Byrd, who used the tactic to change Senate precedents on filibusters and other delaying tactics when he was Majority Leader in 1977, 1979, 1980 and 1987. This history is detailed by Martin Gold and Dimple Gupta in the current issue of the Harvard Journal of Law & Public Policy.
The example most closely analogous occurred in March 1980, when Mr. Byrd mounted a charge to eliminate the possibility of a double filibuster--first on a motion to proceed to a nomination and then on a nomination itself. He wanted to push through the confirmation of Robert White as ambassador to El Salvador and, as Mr. Gold and Ms. Gupta explain, "this well established procedure presented potential difficulties."
And so Mr. Byrd moved to get rid of the first filibuster opportunity--debate on motions to proceed to nominations. GOP Senator Jesse Helms objected and the presiding officer ruled in Mr. Helms's favor. Mr. Byrd appealed, and the Senate voted 54-38 to overturn the chair. The rule change went into effect.
Also closely analogous to today is Mr. Byrd's threat a year earlier to deploy the nuclear option if a change he had proposed to Rule XXII was filibustered. "I want to change the rules in an orderly fashion . . ." he said. But, "if I have to be forced into a corner to try for a majority vote, I will do it because I am going to do my duty as I see my duty." In the end, the threat of going nuclear was enough to break the opposition.
Fast forward to 2005. The fight over the judicial filibuster is now coming to a head--even though GOP Judiciary Chairman Arlen Specter is doing his best to delay what looks like an inevitable confrontation. Mr. Specter keeps holding out hope that Democrats don't mean what they say about filibusters, going so far as to imagine aloud last week that New York Democrat Chuck Schumer might support William Myers's nomination to the Ninth Circuit. Sorry. In the hearing last week, Mr. Schumer and other Democrats pounded Mr. Myers as a threat to civilization because he was once an industry lobbyist on environmental issues.
Other Democrats are also digging in. Most disappointing is Ken Salazar, the new Senator from Colorado, who already seems to be reneging on his campaign pledge to support a floor vote for every judicial nominee. Mr. Salazar sent a letter to Mr. Bush last week asking him to withhold certain nominations. Some liberals claim that the Republicans did the same thing to such Bill Clinton nominees as Richard Paez, but that is simply false. Mr. Paez had a long wait but he was ultimately given a floor vote and was confirmed for the Ninth Circuit. Mr. Bush's nominees aren't merely being delayed; they are being denied a vote.
It may well be that the filibuster flap will cause Democrats to raise the roof and use Senate rules to obstruct other legislation. But the alternative is for Republicans to let a Senate minority dictate who can sit on the federal bench--even after two elections in a row in which Democrats lost Senate seats in part because of the judicial filibuster issue. Elections ought to mean something. If Republicans allow a repeat of the last two years, their own voters will start to hold their timidity against them.
Meanwhile, rhetoric does matter in politics, as Herr Byrd has learned from his wacky Adolf allusions. As Republicans move to explain what they're doing to give nominees their Constitutional right to a vote on the Senate floor, we suggest they refer to the tactic as the Byrd option.
BYRD WP OP-ED: Factually inaccurate, inconsistent with his voting record
U.S. Sen. Robert Byrd (D-W.Va.) had an op-ed in the Washington Post today (‘Nuking’ Free Speech, http://www.washingtonpost.com/wp-dyn/articles/A5692-2005Mar3.html) arguing against the current Senate proposal to restore the rights of the majority and end the unprecedented filibusters against the President’s Judicial nominees. But his arguments were both factually wrong, and historically inconsistent with his own voting record.
Sen. Byrd said that restoring Senate tradition “could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate's very essence -- the constitutional privilege of free speech and debate.” But history—and Sen. Byrd’s own actions—prove otherwise.
In fact, Sen. Byrd is often credited with pioneering the Senate procedure he now derides as a denial of free speech and a threat to our liberties. Recall that it was Sen. Byrd who led the charge to establish new Senate precedents in 1977, 1979, 1980, and 1987 - including a number of precedents that were designed specifically to stop filibusters and other delay tactics that were previously authorized under Senate rules or prior precedents:
In 1977, Senator Byrd led the establishment of a new precedent in order to break a post-cloture filibuster on a natural gas deregulation bill, stating:
“I make the point of order that when the Senate is operating under cloture, the Chair is required to take the initiative under Rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order." That precedent contravened prior precedent, which would have required the Chair to await a point of order from the floor.
In 1979, Senator Byrd led the establishment of a new precedent that allowed the Chair to rule on questions of germaneness raised during the consideration of appropriations bills - notwithstanding Senate Rule XVI, which states that all questions of germaneness on appropriations bills must be decided by the full Senate.
In 1980, Senator Byrd led the establishment of a new precedent to require an immediate vote, without debate, on any motion to go into executive session to consider a particular nomination. His new precedent was specifically designed, in his words, to "deal with a filibuster on the motion to proceed" to a nomination. Previously, a motion to proceed to a particular nomination was debatable. The new precedent was sustained by a vote of 54-38, and yet the precedent did not “rob a senator of the right to speak out against an overreaching executive branch,” as Sen. Byrd claimed in his op-ed.
In 1987, Senator Byrd caused establishment of a new precedent declaring that certain tactics were to be construed as dilatory during roll call votes and therefore always out of order no matter what - even though the text of the Senate rules had clearly authorized such tactics. Previously, dilatory tactics were out of order only after cloture had been invoked.
And in 1975, the Senate voted three times (51-42, 48-40, and 46-43) in support of the power of a Senate majority under Article I to change the rules. Those precedents forced the Senate to act and led to a major change in the cloture rule.
The Constitution and the U.S. Supreme Court:
* Article I, Section 5 of the Constitution clearly states that "[e]ach House may determine the Rules of its Proceedings."
* The U.S. Supreme Court has unanimously held that, unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. [See United States v. Ballin (1892).]
As Sen. Byrd must surely know after decades in the Senate, a majority of Senators has also always possessed the constitutional power to establish new Senate precedents - including precedents that reverse prior precedents, and precedents that contravene the text of the standing rules of the Senate. And I think he was very clear in 1979 when he claimed exactly the opposite of what he averred in today’s op-ed:
“This Congress is not obliged to be bound by the dead hand of the past. . . . . The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time.... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.”
--U.S. Sen. Robert Byrd, Jan. 15, 1979
Sen. Byrd also claimed in the second graf that “President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year.” That charge, though, is simply inaccurate. NONE of President Bush’s judicial nominees have “been turned down in the Senate.” None. The nominees were denied a vote altogether—despite the fact that they all had (and have) bipartisan majority support. ALL would be confirmed if a partisan minority of the Senate would allow an up-or-down vote.
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