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.

Your post has at least one inaccuracy in it, and I think it misses the simple REAL rules and reasons why "make the other team talk" filibusters don't happen.

Please note that in 1975 the Democrats did not have the 67 votes required to shut-off filibusters by Republicans who were objecting to the proposed 'cloture' rule change from 67 votes to 60 votes. Under the leadership of Senator Robert Byrd(D-WVa) this Senate Rule XXII change was accomplished by simple majority vote.

The 1975 change to Rule XXII was made according to the 2/3rds of Senators present and voting rule (for changing rules) that was put in place in 1959. Here is a summary of the history of cloture, including a cite to an excellent article.

Gold Gupta Summary of Cloture & Filibuster

Senate Rules from 1789 to 1806 permitted calling the question with a simple majority. See http://rules.senate.gov/history.html, Rule IX. This rule was removed in 1806, and in its place was a requirement to obtain unanimous consent to move to the vote. One objecting Senator could stifle the vote.

The cloture rule was implemented in 1917, on a bipartisan 76-3 vote. (p226). With the concurrance of 2/3rds of the Senators voting, debate would be limited and taking the vote would be set for a time certain. This matches the procedure in Robert's Rules of Order.

In 1949, on a 63-23 vote, the threshold was modified to 2/3rds of the Senators duly chosen and sworn. (p229).

In 1959, a 77-22 vote returned to the original 2/3rds of the Senators present and voting. (p247). Also, cloture was broaded to include rules changes - this is where the "2/3rds of Senators present and voting are required to change the rules" rule comes from. The 1959 changes are referred to as the "Johnson (LBJ) Compromise."

In 1975, Senator Pearson introduced a proposal to change the threshold to 3/5ths of Senators present and voting. (p257). That proposal did not pass. In the same year, Senator Byrd's proposed revision to 3/5ths of all Senators passed on a 56-27 vote. (p259).

http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf

The reason there are no "make them talk" filibusters is that there is no "talk or vote" rule, and there is no "you have to talk" rule. If either rule exists (or some combination of maneuvers that accomplishes the same thing), I sure would appreciate a citation and a simple explanation of how to make it work. I know of three ways to get to the vote, unanimous consent, cloture, or be dealing under the stricture of Rule XXX for treaties.

Refer to pp 1073-74 of Riddick for the proposition that UC is required to fix a time to vote on a nominee and to p 935 of Riddick for the proposition that it is not in order to move a question. By refusing UC on the vote, the minority stifles taking the vote - but is not forced to talk.
http://www.gpo.gov/congress/senate/riddick/1038-1078.pdf
http://www.gpo.gov/congress/senate/riddick/934-937.pdf

The problem with operating 'status quo' is that position directly supports the contention that the Senate is a 'continuing body' and hence is bound the the established rules of a previous Senate. If Frist believes as he stated in his speech that he reserves the right to change Rule XXII at a later date, then that means that currently the Senate is NOT operating under any "Rules" but those imposed by simple majority (51) votes. He cannot have it both ways: the previous 'Rules' are still in force with no adoption by the Senate of the 109th Congress, or there are no 'Rules' until the current Senate adopts what the Rules committee puts forth... I don't see how Majority Leader Frist can combine both positions.

The "continuing body" proposition is obviously not going to carry the day, since new Senates have been know to make material changes to the rules.

But instead of the usual foray into what the Senate has done in the past regarding implementing rules changes, I ask the reader to study the purpose of cloture per se. Why does the rule exist at all? What is its function? Cloture is not a bad thing or a good thing, and more than a motion to adjourn is inherently good or bad. It depends on how, or in the case of cloture, why, the motion is used.

Before getting to that, here is what Frist said about the RUles at the start of this Congress - his objection was narrow ...

Frist did not acquiece to Rule XXII (but did not not seek UC to preserve the issue, as has been done in the past), on the first day of the Session, January 4, 2005.

Our first responsibility above all else is to do our constitutional duty. Nothing should come before it. Nothing should stand between it--not party, not ideology, and certainly not politics.
Yet, in the last Congress I believe the Senate failed to perform an essential constitutional duty. It failed to offer advice and consent to the President by filibustering ten judicial nominees and threatening to filibuster another six. These filibusters were unprecedented. Never in the history of the Senate has a minority filibustered a judicial nominee who had clear majority support. This was an abrupt and an unfortunate break in more than 200 years of Senate tradition, of Senate history. This tradition must be restored, not merely because we honor the traditions of the Senate, but because this tradition reflects the proper role for this body, the Senate, as designed by our Framers in the constitutional arrangement.
Next month we will have the opportunity to restore Senate tradition. I will bring one of the President's very capable, qualified, and experienced judicial nominees to the floor. We can debate that nomination. We can vote to support it or to oppose it. And we must offer the President advice and consent by giving this and future judicial nominees who are brought to the floor up-or-down votes.
Some, I know, have suggested that the filibusters of the last Congress are reason enough to offer a procedural change today, right here and right now, but at this moment I do not choose that path.
Democratic colleagues have new leadership. And in the spirit of bipartisanship, I want to extend my hand across the aisle.
I have a sincere hope that we can move forward past difficulties--beyond the past difficulties we saw in the last Congress--and look forward to a future of cooperation.
I seek cooperation, not confrontation. Cooperation does not require support for the nominees. Cooperation simply means voting judicial nominees brought to the floor up or down.
So let me say this: If my Democratic colleagues exercise self-restraint and do not filibuster judicial nominees, Senate traditions will be restored. It will then be unnecessary to change Senate procedures. Self-restraint on the use of the filibuster for nominations--the very same self-restraint that Senate minorities exercised for more than two centuries--will alleviate the need for any action. But if my Democratic colleagues continue to filibuster judicial nominees, the Senate will face this choice: Fail to do its constitutional duty or reform itself and restore its traditions, and do what the Framers intended.
Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII, and do not acquiesce to carrying over all the rules from the last Congress.
As a public servant who has twice taken an oath to support and defend the Constitution, I cannot stand idly by, nor should any of us, if the Senate fails to do its constitutional duty. We, as Senators, have our constitutional duty to offer the President advice and consent.
Although our constitutional duties are paramount, we also have a legislative responsibility to the people we serve and to the Nation. This is our opportunity to take on the challenges that each of us sought public office to pursue. After all, we are here not just to occupy our offices but to lead, to be bold, to take action, and to get things done.
109th Congress - Page S14 <- First Column

I apologize, that was a long diversion from the subject of "What is the purpose of cloture?" And when the purpose of cloture is clear, then what the Democrats are doing to the Senate will be seen a prliamentary dysfunction, pure and simple. The Democrats are denying the Senate the ability to use its voice. The argument does have a constitutional dimension as well, because when the Senate refuses to give its voice in a matter of appointment, it is encroaching on the President's power. But a Constitutional inquiry is not necessary in order to understand that teh Democrats are creating a parliamentary dysfunction.

The words "filibuster" and "debate" are used, but the dysfunction is "refusal to vote." Every Senator knows where they stand on the nomination. There is no need for further persuasive debate. The Senate is shirking its advice and consent function by refusing to vote.

In parliamentary proceedings, there is no way to separate taking the vote from debate on the matter. When a matter is brought before the body it can be disposed of in several ways. It can be ruled as not in the scope of the body's charter. It can be tabled by a simple majority for a variety of reasons, at a variety of points in its consideration. But tabling a point does not terminate it, the table is a place to rest. Of course, a tabled amendment to a motion dies if the motion is approved without the amendment.

If the matter is taken to debate, the debate will follow the rules of the body. Sometimes, cloture is required or desired. Its function is to reduce the amount of debate before taking the vote. Its function is emphatically NOT to avoid the vote altogether. Cloture is used to give power to the objections of members who have not had opportunity to speak, or who remain undecided on the matter because they have not heard enough debate. The need for debate is to faciltiate individual decision making, and once the members are firm in their convictions, the time for voting is ripe.

The Senate has divorced the vote from the debate, using the cloture device. They have done this by permiting and ENGAGING in extended debate, followed with refual to vote. The body of the Senate exhibits parliamentary dysfunction.

HATCH: On April 8, 2003, Senator Bennett, my colleague from Utah, asked the then-assistant minority leader, Senator Reid, how much time the Democrats would require to debate the nomination fully. This is what he said:

There is not a number of hours in the universe that would be sufficient [to debate this nominee].

They did not want to debate Justice Owen, they wanted to defeat her. Debate was not a means to the end of exercising advice and consent. It was an end in itself to prevent exercising advice and consent. The majority leader has made offer after offer after offer of more and more time, hoping that the tradition of full debate with an up-or-down vote would prevail. That hope is fading, as Democrats have rejected every single offer.
Finally, last month, the minority leader admitted that "this has never been about the length of the debate." That is what the minority leader said. It has never been about the length of the debate. That was said April 28, 2005.
109th Congress - Page S5740 - May 23, 2005

Tabling of a Nomination

It is interesting to see how the Senate has handled the relationship between tabling a nomination, and voting on the nomination, before the cloture mechanism of Rule XXII was available. Does passing a motion to table dispose of the nomination? It does not - either as approval, or rejection.

In 1828, a motion to table the nomination of one Alexander Macomb failed on a 18 - 19 vote (18 voted to table, 19 voted to not table), so the nomination was still before the Senate. The Senate proceeded to vote on the nominee, who was confirmed with a vote of 26 - 12.

But the handling of Alexander Macomb's nomination does not address what happened when a motion to table was passed. On March 16, 1822, one Nathan Towson was denied advice and consent following a motion to table. Tabling did not dispose of the nomination, a rejection vote did.

"Can anyone explain why we don't make them ACTUALLY filibuster?"

Because this is where the cloture procedure come into existence.

Both sides come up with this lipsticked pig rule change, I believe in the 1950's or 60's, so they wouldn't have to get off their lazy ass and actually hold the floor.

This way they didn't have to do without sleep,the parties, weekends off, interfere with spending our money and all members of both sides having to stay in the building and on the job when it was broken and a vote promptly called.

In other words they changed the rules to make it more convenient.

Can you see any of these fat cat over aged alcoholics standing on the floor away from the good life for very long.

So they made it convenient. The end result was this mess.

Under the old rule when they filibustered Bolton Thursday then some democrat would have had to take the floor and started talking and he would have still been talking now and right on through the weekend or until he collapsed or yielded.

The rest would have had to stay in the building because as soon as he did the vote would have taken place.No long Memorial Day weekend.

The filibuster was never intended to stop a vote only to delay it as long as an individual could stand and physically hold the floor.

They changed it to where a if a certain number of senators, I believe 17, agreed in written form to filibuster that the subject of it was considered filibustered permanently or until you could get a super majority of vote in this case 60 to break it.

They took what was a delay tactic and turned it into a veto.

I believe this rule change would be declared unconstitutional if properly argued before the courts.

I think the barrier to scheduling a vote is that it takes unanimous consent to schedule a vote. It doesn't have anything to do with holding the floor.

Perhaps I was unclear I don't know of anything that would force an opponent to take the floor either.

What I meant is in order in the past of the rule of unlimited debate in order to filibuster a Senator in opposition would acquire the floor in open debate and refuse to yield as long as he could.

He had to remain on the floor,remain standing and keep speaking.

If he did not do these things then a member in favor could request recognition get it and he would control the floor .

Then he could offer a motion to vote or proceed to the vote. All that then would be required to carry a floor vote is simple majority.

Once you get to the floor in the Senate all that is required to pass anything, is a simple majority vote.

Unless a super majority is required by the Constitution such as to convict or overturn a Presidential veto etc., majority rules.

Unanimous consent or the filibuster until this cloture agreement could be broken by simple majority vote 51 once the floor had been acquired by a Senator in favor of passage.

It was in this agreement that the super majority which was originally 2/3=65 and reduced later By Byrd when they where in the majority to 3/5= 60, came about. Like I said a filibuster was used to delay action while others worked to have voters switch their vote on an item.

Now a group of senators in the past could get together and just decide to filibuster any and everything to just disrupt and delay the Senate but they had to do so physically by continually speaking on the floor.

They couldn't filibuster by simply signing a piece of paper and then heading home or to the nearest party or resort.

The ones who pulled these things not only interrupted their on family and / or social life but everybody else's. This did not make them popular even with their own colleagues.

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