When it comes to the filibuster, I’m a regular flip-flopper. I can’t figure out where I stand on this issue. But neither, evidently, can the New York Times. Nowadays, they find a filibuster rule change abhorrent. But back in the early days of our republic… 1995… they felt rather differently. Here’s their editorial from January 1 of that year:
The New York Times
January 1, 1995, Sunday, Late Edition – Final
SECTION: Section 4; Page 8; Column 1; Editorial Desk
LENGTH: 711 words
HEADLINE: Time to Retire the Filibuster
The U.S. Senate likes to call itself the world’s greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him.
For years Senate filibusters — when they weren’t conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor — consisted mainly of negative feats of endurance. Senator Sam Ervin once spoke for 22 hours straight. Outrage over these tactics and their ability to bring Senate business to a halt led to the current so-called two-track system, whereby a senator can hold up one piece of legislation while other business goes on as usual.
The two-track system has been nearly as obstructive as the old rules. Under those rules, if the Senate could not muster the 60 votes necessary to end debate and bring a bill to a vote, someone had to be willing to continue the debate, in person, on the floor. That is no longer required. Even if the 60 votes are not achieved, debate stops and the Senate proceeds with other business. The measure is simply put on hold until the next cloture vote. In this way a bill can be stymied at any number of points along its legislative journey.
One unpleasant and unforeseen consequence has been to make the filibuster easy to invoke and painless to pursue. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.
Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now proposes to make such obstruction harder. Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.
Admirably, Mr. Harkin says he does not want to do that. He proposes to change the rules so that if a vote for cloture fails to attract the necessary 60 votes, the number of votes needed to close off debate would be reduced by three in each subsequent vote. By the time the measure came to a fourth vote — with votes occurring no more frequently than every second day — cloture could be invoked with only a simple majority. Under the Harkin plan, minority members who feel passionately about a given measure could still hold it up, but not indefinitely.
Another set of reforms, more incremental but also useful, is proposed by George Mitchell, who is retiring as the Democratic majority leader. He wants to eat away at some of the more annoying kinds of brakes that can be applied to a measure along its legislative journey.
One example is the procedure for sending a measure to a conference committee with the House. Under current rules, unless the Senate consents unanimously to send a measure to conference, three separate motions can be required to move it along. This gives one senator the power to hold up a measure almost indefinitely. Mr. Mitchell would like to reduce the number of motions to one.
He would also like to limit the debate on a motion to two hours and count the time consumed by quorum calls against the debate time of a senator, thus encouraging senators to save their time for debating the substance of a measure rather than in obstruction. All of his suggestions seem reasonable, but his reforms would leave the filibuster essentially intact.
The Harkin plan, along with some of Mr. Mitchell’s proposals, would go a long way toward making the Senate a more productive place to conduct the nation’s business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.
LOAD-DATE: January 4, 1995
I guess it depends on what your definition of “obstructive” is. (hat tip: BL)
While the ability to voice minority concerns during congressional debate is important, there is no debate going on about these “filibustered” judges. In fact, only the threat of a filibuster is in place, and insufficient votes to counter such a filibuster should it take place.
I think the Frist deal would be an excellent outcome, making a Senate rule giving 100 hours of debate and an up or down vote to judicial nominees. That is a rule that any fair minded person should be able to back.
Roger;
Both sides of the aisle can be tagged with changing their view on the fillibuster. In addition to the mid nineties push to eliminate the filliobuster you can track the mid fifties push to change the Senate Rules because of the Southern democratic use of the fillibuster to stop african americans attempt for full citizenship. If you look up some of the more liberal editorials of the MSM and especially of civic rights leaders of the time you can see what they think about the wonderfull blessings of the Senate to “cool down” those out of control forces who thought getting rid of Jim Crow laws was a good thing.Strangly it was Richard Nixon who led the charge to get the rules changed to produce a civil rights bill. The cooling effects of the Senate helped produce the 1957 civil rights bill that was, well lets just say it didn’t do much.
One thing that the dems cannot dispute is the incredible use of the fillibuster inthe Bush years.Depending on who you talk to the fillibuster was used 13 times against circuit or supreme court judges in the entire history of the Senate. And not all of those judges were kept of the bench, just delayed. 13 times in 200 years. The current batch of Dems have used it 18 times in 6 years. Even the most partisan advocate of the fillibuster can’t help but see the numbers and still claim that this is what was intended by the Senate rule of fillibuster. If it was intended to create a minority veto of judges it would have been used more often. This is not the first time in history that there have been partisan differences between the parties. When the Dems mention Abe Fortas they don’t add the info that he stepped down from the lifetime Supreme Court position rather then fight ethics charges, one of then being that he filled President Johnson in on meetings of the Supreme Court that were intended to be private, That alone, in addition to some of the more minor money issues, should have been enough to make the Dems not mention this man in the defense of the fillibuster but since the MSM never mentions this fact they are given a free ride.
I am loathe to change the rules and normally the Senate Rules require a super majority to be changed. But the fact that the Dems have used the fillibuster more times in 6 years then in the previous 200 years is stunning. They have taken a tactic that was only used in rare circumstances and turned it into a rule that changes advise and consent, which is in the constitution as oppossed to the myth the dems are trying to pass off that the founding fathers mentioned the fillibuster in the constitution, and turned nominations into a super majority requirement that gives any minority a veto over judges.
I am still not 100 percent sure the rule should be changed. But if it is the Dems historic abuse of the fillibuster is the reason. Even though it should have not happenned, the stalls of the Clinton nominations were done by a Majority Republican Senate. not a minority. Holds and stalls are not fillibusters. 13 times in 200 years. 18 times in 6 years. How can that not be seen as a radical change in the use of the fillibuster.13-200, 18-6
I don’t like filibusters on principle, as un-democratic, but since any decision now regarding them is politically fraught, why not agree now that the rules will change later, say after the next Presidential election?
That way it won’t be clear which side gains by elimination of the filibuster. Sorta the “one kid cuts the cake, the other chooses the slice” approach, which works with kids of all ages.
Since I am not a senator and am not the least bit inclined to study the rules by which the Senate conducts itself, I say let them alter the rules as they see fit under whatever rule is in place for altering rules.
The whole notion of fillibusters seems silly to me. What’s wrong with voting? Why does there need to be a method for preventing a vote? Just askin’, like I said I am not inclined to study up on this proceedural stuff.
Ocams Beard-
So the democrats abuse the rule and President Bush pays the price?
Occam’s
I am sick to death of the Democrat’s obstruction and bullying here. The Constitution does not require a supermajority to confirm judges (even for the Supreme Court), yet that is what the Democrats are trying to make happen. That is the rule that the Democrats have invented in the last couple of years.
The Democrats’ behavior is not only an abuse of power but also completely unprecedented in our nation’s history.
Note that when Democrats try to argue that Republicans have done the same, they bring up the 1968 case of Abe Fortas, when the Senate argued about the guy for four days. Was it a real debate or an attempt to filibuster? Whatever. It lasted FOUR DAYS. Some of these judges have been waiting for FOUR YEARS.
A handful of politicians are prevented America’s elected representatives from doing their jobs. My two senators count themselves more important than the voters of any red state.
I am really angry.
Knucklehead,
Filibusters themselves are an old tradition (bad, I think, but still a tradition). Filibusters on judicial nominations–brand new.
It is important to distinguish these, I think.
I suppose one of the reasons why you are a flip-flopper on the filibuster — as am I — is that it is a very difficult issue over which to take a principled stand. Those on the right who advocate its repeal have worked themselves up in a high dudgeon about “democracy” and “every judge deserving a vote” and all the rest of it, but this is extremely strained. The Senate is structurally an undemocratic institution. The Senators from Wyoming represent a tiny fraction of the number of people represented by the Senators from California or Texas. Since this is the case, it is a bit silly to argue that there must be pure majority rule democracy within the Senate. Why is 51 votes a sacrosanct number? It seems to me that if this undemocratic institution were to decide that the votes of 60 Senators were necessary to pass any legislation or confirm appointments, that would be just fine from a moral perspective, even if it would have its drawbacks from a practical standpoint. It certainly would be no less democratic than requiring only 51 votes. But the argument also goes the other way: there is nothing sacrosanct or inherently defensible about the filibuster either, so the lefties who argue that the Republicans are doing something wrong in pushing for its repeal are just as full of horse pucky as the righties who bleat about getting “a vote.”
The truth is, virtually all parties to this debate are arriving at their position on the filibuster based on their desire to promote or frustrate the promotion of Bush’s judges.
At the risk of overposting, I think the Democrats fear, more than anything, the nomination of actual conservative judges, as that threatens Roe v. Wade.
An ex-liberal myself, I will confess that every time I voted, I was considering whether my candidate would make it harder or easier for that ruling to stand, and I wanted it to stand.
I was discussing this with a liberal family member, who expressed fear that if Roe v. Wade were overturned, some states might outlaw abortion.
This used to horrify me. Now I think: so some states would prefer to outlaw abortion–if the voters choose that, who I am to tell them they’re wrong? Shouldn’t voters have a say in the laws they are to live under?
The fact that some people would answer “no” astounds me. That such people call themselves “liberal” astounds me further.
TigerHawk, Roger:
With all due respect, you’re both missing the point. There is something to be said for tradition. The country went on for two centuries without any filibustering of judicial nominees.
The Times is consistent; they consistently support the Democrat’s position. This wouldn’t be so annoying if they just came out and admitted it, but instead they pretend that they have analyzed the pros and cons carefully. My favorite was when somebody found out they’d endorsed drilling in ANWR back in the 1980s.
Roger:
The amount of Orwellian double speak from the Dems on this issue is amazing. They cite the glorious history of the fillibuster and harken back to the founding fathers. Wjen they removed the need to hold the floor from debate in the seventies the completely changed what the founding fathers intended the fillibuster to be.
The fillibuster was intended to make sure any issue had the proper amount of debate. It was not intended to give the minority party the veto. One of the reasons it was rarely used on judges,I think the first time was in 1949!, was because of two things. Under the old rules, which Sen. Byrd changed, you had to hold the floor with debate thus getting the debate that the fillibuster rule was designed to provide. You also ran the risk, ask Newt Gingrich, that if you shut down the ability of Congress to pass anything with your fillibuster it had to be important or you risked political penalties.It makes me sick to hear Byrd drone on about the sacred history of the fillibuster because he was the man who helped warp the meaning of the rule by eliminating the need to hold the floor with debate.And the Dems have the balls to claim that free speech is being shut down when the new fillibuster rules don’t require them to speak.Infact the only real fillibuster was held by the Republicans when they held an old fashion,the fillibuster that was intended by our fore fathers, fillibuster when they held the floor to debate judges.
This is power politics, not constitutional ethics. The dems might win. But they can’t seriously argue that the Republicans are rewriting the Constitution when the Dems already did it. The Byrd fillibuster has nothing to do with the original fillibuster. He and the Democrats have taken a Senate rule that was intended to ensure ample debate and turned it into a minority pocket veto, a Constitutional power that the founding fathers never intended any minority party to have. If they wanted a super majority on judges they would have written it down, not advise and consent
Bostonian,
I am at least slightly familiar with the argument that fillibusters have never been used re: judicial nominations before. I’ll leave it to others to determine whether that is completely true, sufficiently accurate, or whatever.
To listen to the “sanctity of the Senate’s traditions” howlers these days, however, one would get the distinct impression that fillibusters were a constitutionally guaranteed thing. They’re not. The constitution merely grants the congress the power to decide their proceedural rules. The fillibuster (or rather how and when it can be used) is nothing more than one of those procedures. Its seems to me that the houses of Congress should be free to change their procedural rules whenever they wish for whatever reason provided they do so within the procedural rules.
Someone above noted that the intent of the fillibuster is to guarantee the opportunity to debate. I suppose. As I said before I won’t bother to educate myself on this. What little exposure I’ve had to the term, however, suggests it is used to stifle debate and, apparently, to prevent votes. It may be a wonderful tradition but it still seems silly to me.
Kevin,
Yep. It’s called statesmanship, proposing something that’s not in your immediate political interests, but is in the overall interests of the polity.
I know it’s not fair to allow the abuse to occur. In my proposal, the President pays the political price in the short term for something that would benefit the country as a whole in the long term – much like the war in Iraq.
Knuckle–
…the sanctity of the Senate’s traditions…
Winston Churchill would have asked, as he did of the Royal Navy, “And what traditions are these?”
Rum, lobotomy and the cash.
Knucklehead:
When Byrd removed the requirement to actually debate when you use the fillibuster he completley changed the nature of the rule. The reason it was rarely if ever used in the past was because you had to do the Jimmy Stewart never ending speech and you had to run the political risk that always happens when you decide to hold up congressional buisness. The old fillibuster allowed any Senator to make sure that no issue or judge was rushed without proper debate being held. That was the purpose of the fillibuster. Byrd changed the rule and got rid of the need to debate and turned it into a minority veto, Byrd acted against the constitution by giving the Senate a veto that the framers never intended any party to have.And they have the nerve to claim that getting rid of the no debate fillibuster is a threat to free speech. This idea is ludicrous.
The be a bigger man idea is attractive but it would end up with Bush giving the power to nominate Judges from the Presidency to the Senate. The Dems couldn’t technically nominate anyone but they would hold the power to tell Bush that he has to get minority Democratic approval on any judge he wants to nominate. The Republicans won the House, they won the Senate, they won the Presidency. The dems are saying. that doesn’t matter, we decide who gets in, who gets out. This is not protection of minority rights, this is minority rule.
Kevin–
Ironic that the Democrats are cloaking their extra-constitutional argument in the language of the civil rights movement to try to defeat a minority judge.
Occams’s Beard
Let me see if I follow your argument. The Democrats have been conducting a policy of preventing conservatives from being appointed to the courts, especially the SC, at least as far back as Robert Bork.
You are saying that, in return for their promise to stop doing this at some point in the post Bush future, President Bush should agree to appoint only those judges that the Democratic interest groups approve of, and that the Democrats in the Senate will sign off on?
You can call this “statesmanship” if you like. It sounds a lot like unconditional surrender to me.
Tell you what. I suggest that the Democratic party exibit a shred of statesmanship for a change, and end these unprecendented filibusters. And if they do not, the people can decide for them themselves who is at fault, and take appropriate action.
Frist says that Democrats have shutdown the Senate committes
http://frist.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=1942&Month=5&Year=2005
Roger,
When it comes to the filibuster, I’m a regular flip-flopper. I can’t figure out where I stand on this issue.
It was settled for me a while back when I re-read the relevant portion of the Constitution: Article II, Section 2 specifies when super-majorities are needed, and approving a judicial appointment is not one of them. The Democrats’ obstructionism is not just against the tradition of the Senate, it is anti-constitutional because it prevents the Senate from doing their constitutionally mandated duty and it creates a minority veto.
The Democrats had their chance when Frist offered a statesmanlike compromise. Now that they’ve rejected it, it’s time to call for a vote.
The key point is that SENATE RULES CAN ONLY BE CHANGED BY A SUPERMAJORITY.
Regarding the previous liberal anti-filibuster statements R. Simon references, there is a strong argument to be made for jettisoning the filibuster for legislation while retaining it for lifetime judicial appointments, since unlike legislation these decisions to approve someone with lifetime tenure cannot be revoked. legislative decisions that cannot be revoked with later legislation.
Tigerhawk:
If the founding fathers had wanted the Senate to be like the House and be represented by population alone they would have made it so. If they wanted a super majority for judges they would have said so.
The truth is the president won the election in popular vote and the constitution says he gets to pick the judges and the Senate gets to advice and consent. It would seem to me that if they wanted this decision to be based entirely on population they would have written it up that way.
It is one thing for a legislator to filibuster legislation, it is quite another to filibuster executive nominees.
Perhaps we could dispense with discussion of this issue on the basis of tradition or the merits or the principles involved. Both parties are obliged by their political core constituencies to take and maintain the positions held. The Republicans cannot back down and neither can the Democrats. The Democrats will lose, not because they are wrong (although they are), but because they have been soundly defeated in the past three elections. The Republican action is as strong as it is because the political crystal ball shows them to have control of the legislature for a minimum of six more years – which is right next to eternity in the context of political decision making.
The posturing and flummery will be either entertaining or infuriating, depending on where you sit, but this is just Masterpiece Theater for the benefit of the two cores. The only item of interest is whether Reps who are squishy get punished for lack of discipline. I’m all for voting Chaffee off the island no matter what he does but Snowe and Collins may be salvageable. Hagel and McCain will get back in line or stop dreaming of the Oval Office (not that either are ever going to do more than visit it).
“This is power politics, not constitutional ethics.” KP
That is exactly right. The old saying about lawyers is revealing of politicians as well:
“If you don’t have the facts, argue the law. If you don’t have the law, argue the facts. If you don’t have either, yell like hell!!!!”
Using the filibuster is the equivalent of “yelling like hell”.
Justifying it for routine appointments (I put Court of Appeals Judges in that category, because historically, that is exactly where they have been) is clearly unprecedented and “extraordinary”.
But you’ve got to give the Senate democrats an “A” for effort.
I am on the side “right.” What is right for Republicans is right for Democrats, and vice versa.
We cannot-must not-live our lives in fear of losing power. That is a sure way to lose it! No. We must do what is right.
As far as anything to do with another branch of government, ie. the Presidency, there must be deference unless there is a visible problem.
If I wanted a Democrat, I would have voted for one. One day there will be one. I will hold the same view. It is right.
We just must work hard to make sure the people we elect do not forget why they were elected in the first place and start fighting for us.
Markus–
There is precedent for modifying the fillibuster rule by appealing to the Chair. It’s known as the Byrd option because that’s what Robert Byrd did back when he was majority leader during the Carter era. The Democrats dreamed it up, now it’s coming back to bite them in the ass.
Rick B.–
I guess Collins may have some designs on powerful committee posts, etc. Seeing as how Maine’s governors are term-limited and have less power than the mayor of Cleveland, she probably doesn’t have too many better career options. Besides, she’s about as bright as the hold of an oil tanker.
Hagel and McCain are egotists, but can be made to heel, since their egos require they be considered presidential timber in 2008.
Chaffee (aka “Senator Empty Suit”), however, may as well leave the party now. His caucus vote is wholly unnecessary, and he already votes like a Democrat. Plus it would get him off the Judiciary Committee. I’m sure the Democrats could find some committees for him to serve as ranking member, like Waterways & Fisheries.
Another thing: The reason why the Democrats are so upset is because they have held the White House and the Senate together for a grand total of two out of the past 24 years.
Sorry, but if the public wanted them to control judicial appointments as much as they think, they would have won more often. As it is, they’re batting .083 since 1980, versus a 20th century average of .380. It’s as if Ted Williams suddenly started batting like Roger Clemens.
Markus:
If you don’t like the non super majority method for the changing of the Senate rules BLAME SEN. BYRD! He created the precedent, he created the loophole that allowed him to drop the requirement to hold the floor with debate in a fillibuster.Byrd changed the fillibuster from Jimmy Stewart to minority tyranny.If the racist southern Democrats would have had the Byrd option the 1964 civil rights bill might not have passed. And if you want to argue two wrongs don’t make it right then go back to the Senate tradition that Byrd aborted and make the Senators perform a real fillibuster and stop all congressional buisness by debating the judges.Byrd changed the fillibuster rule by a loophole, the Republicans have the right to use the loophole that he created.All this talk of tradition and our founding fathers is pure crap.The fillibuster rule that the Dems are using didn’t start till the 1970′s.
The filibuster should be abolished for the good of the Democratic Party.
Translating Hugh Hewitt’s latin slogan, “The power of the Democrats must be destroyed.” There can be no change in the party, no return from its current self-referential lunacy, until it learns, conclusively and inarguably, that what it is doing no longer works. That means, very simply. that any effort on any topic by the Democrats must be slapped down. We must take the loaded gun of the filibuster out of the hands of this drunken, incoherent political party until it changes its ways.
richard:
I guess we could look at the nuclear option as an intervention of sorts.
Kevin P. — I’m sure if Mr. Byrd joined us right here to respond to your comments on the ‘Byrd amendment’ he wouldn’t end up sounding like an idiot. But as for me, I have to read more before I can comment on your claims.
Suffice to say for now, both parties are putting their policy agenda above their principles. I recall Republicans talking at length about the importance of checks and balances and the irrelevance of majority rule when Gore got half a million more votes than Bush. Now “democracy means that the majority gets to decide.” It’s all part of the game, right?
But go ahead, please try to shove your agenda down the throats of the 59 million of us who held our nose and voted for the windsurfer with the nutty billionaire foreigner wife.
(In fact, while on the subject of majorities, a number of American citizens represented in the Senate by one or two Democrats, is GREATER than the number represented by one or two Republicans.) No, you don’t have a supermajority. But please, please continue acting like you do.
Markus:
I am a little confused but if you are using population numbers that assumes that all non voting citizens would have voted for the winning Senator. If you are not using the population of the state for your argument then ignore this. Yes, the Republicans fillibustered some of Clintons nominees. But they were all confirmed and are sitting on the bench. Yes the Republicans used holds and committee delays against Clinton, too much I think, but at least the Republicans could claim that they were the Majority in the Senate. The one thing you can’t argue is that the Dems have used the Fillibuster 18 times against judges in the last 6 years. Democratic Senator Durbin claimed that there were 13 cases of Fillibustering judges in the past but that was over close to a 200 year period. The fact that this set of Dems have used it 5 more times then the total of fillibustered judges in the entire history of the Senate must indicate that they are not just using it in a extrodinary case but they are using it wholesale.It is a hard argument that they are using the fillibuster in the traditional manner.So I have a hard time when the dems cry tradition.The current fillibuster rules have only been in force since 1975 when Sen. Byrd lowered the super majority from 67 to 60, thus weakening the republican minority of the time and giving the majority Democrats the ability to negate the republicans use of the fillibuster. Now Byrd is screaming about how you can’t weaken the minoritiy parties rights. I guess when Byrd weakened the minority Republicans fillibuster rights it was “principled”. There was a debate over Senate rules changes in 1979 and Byrd argued that each new congress had the right to change the rules made by the previous congress. This is what the Crusading defender of senate tradition had to say on the floor- “This congress is not obliged to be bound by the dead hand of the past.” Byrd has found a renewed love for dead hands.
Kevin–
“Byrd has found a renewed love for dead hands.”
When you’re Byrd’s age, a lot of appendages start dying on you.
The requirement for a supermajority to confirm judges is wrong, immoral, unprecedented, and should be ruled unconstitutional by the Supreme Court – but who has standing who would press the case?
My first choice for the Reps would be to do what Dick Morris is recommending: change the rule to force a real, standup filibuster and make the Dems talk for a day, a week, a month. They would destroy themselves in the age of cable news.
I agree that this is Masterpiece Theater for the core groups, and the Reps will win because they have the votes. The MSM will go as far overboard as they can imagine to demonize the Reps, and in so doing will continue on the path of their own self-destruction. So, much good can come of this.
Do the Dems really want Mr. Charisma, Harry Reid, to be their poster boy on this? Oh well, who else do they have?
What could be better than to have the Dems stop the Senate cold? Even the MSM will have trouble spinning that one, which can only play out as little children holding their breath until they turn blue.
Always fun to watch the dinosaurs charge toward their own extinction.
Markus:
In a 2001 democratic leadership conference the brought in Lawrence tribe to discuss strategy on judges. Tribe was qouted as saying “You need to change the rules of the game” The Dems put together a brilliant strategy. They approved lower court judges with little to no fight. But when it came to circuit court judges, and of course they will do the same when there openings on the Supreme Court, they have used the fillibuster against judges more then any Senate in the history of our country.It isn’t even close. Thus while Bush has an overall high approval of Judges rate overall, his approval rate on his circuit nominations is the lowest in decades, far worse then Clintons.
I have to tip my hat to the Dems. It gives them a simple soundbite on the overall approval rate while holding power on the most important, and thus powerfull, circiut judge issue. Thus while they are temporarily in the minority, it always changes eventually, they are able to control the direction of the country because they can use the circuit courts to strike down legislation they don’t like and implement laws that they can’t pass through the normal democratic process.Brilliant. But hardly democratic.
I’m sure if Mr. Byrd joined us right here to respond to your comments on the ‘Byrd amendment’ he wouldn’t end up sounding like an idiot.
Your faith is touching.
What could be better than to have the Dems stop the Senate cold?
Something that paralyzed the House as well?
And if you want to argue two wrongs don’t make it right then go back to the Senate tradition that Byrd aborted and make the Senators perform a real fillibuster and stop all congressional buisness by debating the judges.Byrd changed the fillibuster rule by a loophole, the Republicans have the right to use the loophole that he created.All this talk of tradition and our founding fathers is pure crap.The fillibuster rule that the Dems are using didn’t start till the 1970′s.
********************
This would be a strategy that would be right on the mark for Republicans.
Return the operation of the fillibuster to it’s time honored tradition. Then let’s see if the Democrats have the balls to carry through with their obstructionism.
What could be better than to have the Dems stop the Senate cold?
Something that paralyzed the House as well?
***************
Yeah, other then passing some much needed reform, where’s the harm in the Senate not passing more legislation…
In 1975 Senator Byrd (D-WV) was Majority Whip, Gerald Ford was in the White House and Vice President Nelson Rockefeller was the President of the Senate. Senator Mondale (D-MN) introduced S. Res 4 on 1/14/75. During the course of debate the Chair (Rockefeller) ruled the previous question could be moved after a parliamentary inquiry by Senator Pearson (R-KS). After some maneuvering, the leadership of both parties (Byrd being one of the four) offered the Byrd substitute. It was adopted in regular order on majorities of more than two-thirds of the members of the Senate on all relevant votes.
http://www.senate.gov/artandhistory/history/resources/pdf/Riddick_interview_4.pdf
The relevant portion starts around page 211 (page 38 of the PDF file) for those who care.
Hope this helps.
So revolutions broke out in city after city, and in places where the revolutions occurred late the knowledge of what had happened previously in other places caused still new extravagances of revolutionary zeal, expressed by an elaboration in the methods of seizing power and by unheard-of atrocities in revenge. To fit in with the change of events, words, too, had to change thier usual meanings. What used to be described as a thoughtless act of agression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely another way of saying one was a coward; any idea of moderation was just an attempt to disguise one’s unmanly character; ability to understand a question from all sides meant that one was totally unfitted for action. Fanatical enthusiasm was the mark of a real man, and to plot against an enemy behind his back was perfectly legitimate self-defence. Anyone who held violent opinions could always be trusted, and anyone who objected to them became a suspect. To plot successfully was a sign of intelligence, but it was still cleverer to see that a plot was hatching. If one attempted to provide against doing either, one was disrupting the unity of the party and acting out of fear of the opposition. In short, it was equally praiseworthy to get one’s blow in first against someone who was going to do wrong, and to denounce someone who had no intention of doing any wrong at all. Family relations were a weaker tie than party membership, since party members were more ready to go to any extreme for any reason whatever. These parties were not formed to enjoy the benefits of the established laws, but to acquire power by overthrowing the existing regime; and the members of these parties felt confidence in each other not because of any fellowship in a religious communion, but because they were partners in crime. If an opponent made a reasonable speech, the party in power, so far from giving it a generous reception, took every precaution to see that it had no practical effect.
—Thucydides, History of the Peloponnesian War
Would another 9/11 bring the country together for even a short time? I’m beginning to wonder.
Carry on.
No! Dont put Sen Chafee on the fisheries and waterways committee should he defect–He will want to breech the dams in my Columbia river and screw up the trout fishing in all of its tributaries!! Where is your sense of perspective?
Kevin, Keith, others: As far as I can tell, “The Byrd Rule” deals with what can be included in the budget reconciliation process, which requires only simple majority vote. It doesn’t pertain to judicial confirmations.
Now let’s try to be moderates and make a deal. Let’s start by getting all the facts on the table. I’ll acknowledge that Byrd, Harkin, Ted Kennedy and yours truly have wanted or tried to get rid of the filibuster in the past. You acknowledge Frist voted to filibuster a judicial nominee as well (in 2000). I’ll acknowledge Bush’s has made TEN nominees that ought to get an up-or-down vote and haven’t, if you’ll acknowledge that Clinton’s had SIXTY of them in the same situation.
As Josh Miller of TalkingPointsMemo puts it:
“You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.
“For all the chaos and storm caused by this debate, and all that is likely to follow it, don’t forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn’t manage by following the rules.
“This is about power.”
One more possible compromise:
Bush gets all but two or three of his nominees. Dems agree not to filibuster Rehnquist’s replacement, while reserving the right to filibuster any future openings.
I wouldn’t be surprised to see a dozen or so self-styled moderates embrace in the following sort of idea in the coming days.
The key principle that makes such a compromise possible is this: the ideological balance reflected in the current court must not change in the near future. The country is too divided for that.
Right, Markus! Let elections be what they were designed to be!
Markus:
“The ideological balance reflected in the current court must not change”
That is what this whole battle is about. It has nothing to do with love of Senate tradition or rules.The 18 fillibusters in 6 years is completely against the tradition in the Senate. The fillibuster has never been used in this volume and against this many circuit nominations in such a short period . Never.There have been times where a majority party Senate has frustrated a opposite party Presidents nominations, thats why Bush 41 and Reagan had to appoint Supremos that were more satisfactory to the Dems, because they had the whip hand, and that is why Democrats want to keep the Court the way it is.They like it. They don’t want Bush to be able to change it.
There are consequences to losing elections.There is no special rule that states that when one party has the Presidency, the Senate and the House, the losing party gets to have abnormal powers, that the current balance of the court “must” not change.
The Dems decided that they were going to play hardball, that they were going to fillibuster, like no other minority Senate party in the History of our country, in a way that it has never happened before. The Republicans are reacting to the hardball tactics of the Dems. And they are going to, borrowing Sen Byrds qoute of breaking the “back and neck of the fillibuster”, use the very tactic that he used. When Byrd invented the “Byrd option” he used a new tactic that stopped two Senators from delaying a bill. The tactics they were using were 100% legal and the rules they were taking advantage of were old Senate rules. But the rules they were using, while technically legal, were against the spirit of what the rules meant. The Dems use of the Fillibuster are legal but against the spirit and the tradition of how they have been used in the past. The Republicans are just following Byrds methods.
Sorry Kevin, I stand by what i say — the balance of the court for next generation, should not change, not based on a single 51-48 plurality in a presidential election.
I don’t begrudge you, or anyone else who wants to overturn Roe v. Wade, or whatever other “bad” decision you want to overturn from trying to get your way. You have the right to try to use your narrow majority to get whatever you want, even when it entails doing something that, to quote you, “technically legal”, but “against the spirit of what the rules [mean].”
Just don’t begrudge us from trying to stop you. You have your nuclear options, and we have ours.
And prepare your tortured explanations for why the filibuster needs to remain in place for regular legislation – which of course can be repealed at any time – but must be revoked when the Senate approves lifetime judicial appointments.
Markus:
When Byrd invented his option is was to prevent the two senators who were using time honored rules and legal tactics that they perverted to allow them to frustrate the majority, then democratic. You still have not explained how it is normal senate procedure for this minority Senate democratic party to have used the fillibuster on circuit judges more in 6 years then in the ENTIRE history of the Senate. The Dems pervert the fillibuster law and use it in a volume never been done before and of course it is the republicans that are the problem.
And now, which is your right as an American, you have created the close election minority rights clause which means that the Supreme court suddenly has guaranteed ideological chairs. The Supreme Court “must” stay the same. Thus spake Markus. Even though we lost the presidency, we lost even more seats in the Senate, and we have not had the House in 9 years it is still the right for the Democratic party to controll the balance on the courts. Those silly Republicans and Silly Bush. They actually thought that the increase in their victory margin and the increased majority in the two houses actually meant something.Democratic logic- We lose,but their “must” be no change. Why, because we say so/ As far as the fillibuster goes I agree with that famous right wing wacko Michael Kinsley of the LA Times. It’s undemocratic and it was the primary tool that allowed Russell and his democratic segragationists to keep the Jim Crow laws in place for 100 years longer then it should have. And if the Dems win the presidency, which if I had to guess today I would predict that Hillary will win in ’08 and they have a chance at taking back the Senate too, then they would have the right to put their judges in unless they are ethically challenged like Abe Fortas. It’s called democracy.
markus:
If it is true that our democrartic Republic will come to a end with the end of the fillibuster on judges, if the Dems really believe that that this rule is the essense of what our founding fathers beleived and that we will become a totalitarian nation where free speech will be ended there is a solution. They have in there hands the tool to stop the Republicans. Stop fillibustering. the only way the republicans can change the law is if the Dems keep using it. They have already used more then any other Senate in the history of our country combined.They have been able to get exhaustive debate on Bush’s judges, and debate was the main purpose of the Fillibuster, it was not intended as a minority veto. Sen. Reid can save the fillibuster without 1 republican vote and save the country from ruin. Quit abusing it.
markus:
If it is true that our democrartic Republic will come to a end with the end of the fillibuster on judges, if the Dems really believe that that this rule is the essense of what our founding fathers beleived and that we will become a totalitarian nation where free speech will be ended there is a solution. They have in there hands the tool to stop the Republicans. Stop fillibustering. the only way the republicans can change the law is if the Dems keep using it. They have already used more then any other Senate in the history of our country combined.They have been able to get exhaustive debate on Bush’s judges, and debate was the main purpose of the Fillibuster, it was not intended as a minority veto. Sen. Reid can save the fillibuster without 1 republican vote and save the country from ruin. Quit abusing it.
Markus:
“The ideological balance reflected in the current court must not change”
Excuse me, sir, but who are you to say this? Are you saying that the majority of the country should not have a say in the makeup of the US Supreme Court?
Bostonian:
You have to give Markus credit. He is being honest. Keeping the Supreme Court the way it is the primary goal of this argument. All the wailing and gnashing of teeth about the Sanctity of the Senate Rules, about destroying democracy as we know it is a smokescreen to hide the obvious point that Markus is honest enough to declare. They want to keep the courts the way they are because they know they will be able to control legislation even if they can’t win elections for a time.Of course the Dems will eventually retake partial control or total control of the three legislative bodies eventually.Until the last decade they have always been able to keep controll of most and sometimes all of political power since Roosevelt remade politics in the thirties. They have also had the most influence on the courts. The Republicans would get the Senate or the house temporaily and snag the Presidency too but there has been few opportunities for the Republicans to shape the courts and when I was a rabid Democrate up until the Gore Bush election I liked it too. I am a registered Independent now.
The Republicans have controll now and the Dems are determined to not let Bush shape the court. Thats why they have let lower court nominations go and have given Bush the worst confirmation rate on circuit judges in history. They are fighting tooth and nail to deny Bush the chance and the republicans are counter attacking. This is power politics on BOTH sides of the aisle. Most of the morale outrage is for sound bites to disguise the bare knuckle fight that is going on. Who will win? I have no idea.The Republicans are using the Byrd option to get there way in a method that is not traditional. The dems are using the fillibuster in a unprecedented fashion.Both sides got in the ring and declared it a street fight, no rules. Whoever gets slugged in the balls first can’t whine “unfair, against the rules”
“Excuse me, sir, but who are you to say this? Are you saying that the majority of the country should not have a say in the makeup of the US Supreme Court?”"
Bostonian — I can ask the same question of any piece of LEGISLATION that a Democratic president might have wanted to pass, but that Republican filibusters have prevented. Hillarycare, for instance, had 51 votes in 1994.
Of course the narrow majority should have a say, just not an absolute one. If you want to nominate a strict constuctionist judge, fine, but you need to convince FIVE Democrats that he/she is not that extremist…
The Constitution and the Senate rules are designed to give extra protections to large minorities, and set limits on the actions of narrow majorities. If you want to privatize social security, eliminate corporate taxes, or replace Ruth Bader Ginsberg with Robert Bork…get yourself a supermajority first.
Let me just add, being the gemini that I am, that I see the other side, the liberal one that is. Timothy Noah puts it well here in Slate:
“the interests of the Democratic Party (not to mention little-d democracy) would be best served if the filibuster were disallowed for all legislation. That’s because someday the Democrats will be in power again, and they will want to pass legislation enabling a muscular federal government to solve, or at least address, the country’s problems. In grooving on the filibuster, Democrats show that they are unwilling to consider any such futureÖ”
That’s why I’m half-hoping for a Republican victory here…and awaiting the tortured explanations of Republicans who would retain the filibuster for, say, legislation to allow drug reimportation.
Markus:
Your anticipation for these tortured explanations will have to wait till ’08. The republicans are not likely to be using the fillibuster on anything for a while, even if the Dems get both houses back in ’06,which I haven’t heard anyone suggest but like I said in a previous post it will happen eventually, because of the presidential veto. I doubt the Dems will, if they lose the Byrd option on judicial fillibusters, follow that with a push the elimination of the non-judicial fillibuster. So hold on to your hopes for a debate gotcha because it will have to wait until ’08 at the earliest.
Markus, I said it before & I’ll say it again.
Filibusters on legislation have occurred for the entire history of the republic. We could debate about them, and I’d probably agree with you. But they are traditional.
Filibusters that prevent votes on judicial nomineees–this is new.
If the Democrats support this new tactic to prevent majority rule, what next will they do?
And they’re not going to get away with it. The American people reliably punish elitists.
“Sorry Kevin, I stand by what i say — the balance of the court for next generation, should not change, not based on a single 51-48 plurality in a presidential election.”
Nice discussion you folks…but I had to correct the terminology, 51% is a “majority”, not a plurality. Critical point, when assessing the morality of the goings-on.