Full of It on Filibusters

As the World's Greatest Deliberative Body®, a.k.a the U.S. Senate and the least inspiring bunch of federal employees this side of USDA meat inspectors, gets set to trigger the "nuclear option" on judicial filibusters, the Wash Times' chief political correspondent, Donald Lambro, files this partisan but fascinatin' report on what a tub of ideological lard Teddy Kennedy is on the matter of judicial filibusters:

Mr. Kennedy last week defended the use of the filibuster to block Mr. Bush's nominees, telling CBS' Face the Nation that "you're talking about an institution, established by the Founding Fathers, whose rules have guided us for more than 200 years."

But Mr. Kennedy had a different view in the late 1990s when he and 18 other Democrats sought to abolish the filibuster.

The rules-change proposal at that time, offered by Sens. Tom Harkin of Iowa and Joe Lieberman of Connecticut, would have amended the Senate rules to allow a simple majority to end any filibuster against a bill or a presidential nomination.

Taking the same position now being expressed by Mr. Frist, Mr. Kennedy said on the Senate floor on Feb. 3, 1998: "We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote."

That's good reporting, though one wonders: Where were the Senate Republicans on the matter? I suspect there's more than a few GOP pie-in-the-face quotes floating out there on Nexis. Whole thing here.

Elsewhere in the today's Times, Lambro filed this equally interesting (and partisan) op-ed column:

Mr. Bush nominated 52 well-qualified people to the appellate courts in his first term. Thirty-five were confirmed, but 17 were not. [Writing in Human Events, Washington powerbroker and former chief counsel to the first President Bush] C. Boyden Gray cites American Enterprise Institute scholar John Lott Jr. that the confirmation rate [of Bush appellate nominees]--67 percent-- is the lowest in modern times.

But how did President Clinton's nominees fare under the Republican Senate? Democratic leaders say they are just doing what Republicans did to them in 1990s. In fact, "Clinton's eight-year appellate confirmation rate was 74 percent, in addition to getting two liberals confirmed to the Supreme Court," says Mr. Gray. Mr. Clinton got 377 judicial nominees confirmed. A pretty good record in a Republican-run Senate.

Lambro's op-ed here.

Hmm. The percentages are pretty close, especially given the small sample of the Bush confirmations (if three more Bush picks had been confirmed, he'd be even with Clinton). Then there's the question of Clinton's eight-year span vs. Bush's first four. What was Clinton's first term rate? (Disclosure: Gray is a trustee of the Reason Foundation, the 501(c)3 nonprofit that publishes Reason and Reason Online; I haven't read his Human Events piece.)

Lambro is on firmer ground when he notes that it's relatively rare not to have up-or-down votes over judicial nominees. He notes, for instance, that Clarence Thomas's Supreme Court nomination went to a full vote of the Senate and he quotes "liberal constitutional scholar Mark Tushnet" saying, "The Democrats' filibuster is…a repudiation of a settled pre-constitutional understanding."

That sounds about right. The filibuster rules are not a matter of constitutional import, which might explain why they've been changed over time.

I'd prefer they stay in place, for nominees and other issues, if only for the reason that my colleague Jacob Sullum has suggested: They slow down the pace of legislatin' and, hence, spending and buttinskyism of the non-financial kind.

Comments

[joe]

I like how Gray compares Bush's 35 successfully confirmed APPEALS COURT nominees to Clinton's 377 JUDICIAL NOMINEES who got confirmed. That's cute.

Missing relevant details:

In "the late 90s," when some Democrats moved to eliminate the judicial fillibuster, they were in the minority, while the Republicans who propose it now are the majority.

Also, at that time, other procedural holds and blocks were in place to allow the minority to weed out the most undesireable nominees. Upon having a Republican take over the presidency, they eliminated these procedures. Comparing the use of the fillibuster during a period without these procedures to the use of the fillibuster when they were in place is comparing apples to oranges.

[too many steves]

Much of this filibuster crap reminds me of the squabbles of my children which always involved each of them saying "he/she started it!".

And Teddy Kennedy is an ideological tub of lard, regardless of the issue.

Here's hoping Frist, et al, go ahead with the nuclear option prompting Harry Reid, et al, to carry out their threat to "shut down the Senate".

[Will]

It's been nice to watch Reason's Hit & Run devolve into just another conservative hate-blog where grown men can safely dry hump the carpet while exploring the world of right-wing banner ads.

[Josh]

It's a special kind of partisanship that would make a man unashamed to defend his party's behavior on the filibuster issue.

[Ironchef]

This is just more proof that both parties are only in it to: defeat the other, and to garner more power.

Any idiot that defends this hypocrisy should be outed for the foole that he is.

[Ruthless]

"They slow down the pace of legislatin' and, hence, spending and buttinskyism of the non-financial kind."

I'm in favor of speeding up the pace of legislation. I want the train of state to jump the tracks. It will eventually anyway. I'm so old, I vote for the sooner the better.

[too many steves]

Devolve is the right word and, as Ironchef says, the state of devolution is called "I Win, You Lose.".

[power forward]

But interestingly, what the Repubs are proposing is not a change in the filibuster rules. They don't have the votes for that, because that also would require a supermajority. Instead they want to declare that the entire concept of filibustering a nomination is unconstitutional, which they hang on the meaning of the phrase "consent." They then argue that the question of whether the rule is constitutional can be determined by a simple majority vote, and voila, rule change!

Almost nobody seems to have noticed this brilliant procedural maneuver. This is especially relevant because their main complaint is they have to do something about those durn activist judges and their novel constitutional theories!

But hey, nobody's calling them on this, so how can you blame them for trying to pull it off?

[joe]

Mr. Lambro weasel-dances his way around the central question of whether fillibustering judicial nominees is unconstitutional. Going back over the op-ed, the techniques he uses to make it sound like the practice violates the Constitution, without actually making that statement, are pretty slick.

Even the supporters of the nuclear option know that there is nothing unconstitutional about a judicial fillibuster. To get the outcome they want, 90%+ of the Republicans in the Senate are going to go on record and vote in support of a statement that they know not to be true. Disgusting.

[deron]

Anyone else suspect that this whole thing might be Frist's implosion?

- It appears that it isn't that popular a manuever, and the longer it goes on the more it gets thumped as a servile attempt at satisfying the religious right. With the added benefit that...
- They've weinied around with this threat long enough to make them appear indecisive.
- Finally, at this point if they don't carry it off successfully Frist will appear ineffective.

The Senate and Presidential aspirations make for poor bed-fellows.

[joe]

deron,

Maybe if Frist closes his eyes, clicks his heels, and keeps repeating the phrase "sharcropper's daughter," it will all go away.

[thoreau]

I won't dare defend either side, but I will say that I support something that keeps either party from wielding unchecked power.

[joe]

There are solid arguments for and against the fillibuster on the merits. But it strikes me as exactly wrong to declare that judicial nominations, of all the business the Senate attends to, are uniquely inappropriate situations for a fillibuster.

Legislation can be struck down by the courts, or repealed in a future Congress. If a bad law isn't repealed, the people who support it can be voted out of office.

Executive branch appointments can be fired by the president or the Department Secretary. Every presidential term comes to an end one way or another, with the wholesale clearing out that attends it.

Even in the case of treaties, the US retains the option of withdrawing, or threatening to in order to gain concessions.

In short, all of the other business of the Senate involves matters for which there are ways of undoing bad decisions after the fact. With judicial nominees, the judges are appointed for life, and their decisions are not reviewable by anyone who doesn't also have a lifetime appointment.

Doesn't this suggest that judicial approvals are the topics on which broad consensus, or at least support by a faction greater than 50%+1, are most important? Or at a minimum, doesn't it suggest that they are not uniqualy inappropriate for a supermajority requirement?

[gaius marius]

I will say that I support something that keeps either party from wielding unchecked power.

amen, mr thoreau. this is one of the few weapons always available to the minority party, and it should remain always.

it's bad enough, frankly, that cloture rules were introduced in 1917 (in an impassioned fuss to get us into a war of wilsonian ideology, mind you). the devolution of the filibuster has paralleled the rise of majoritarianism in this country.

[thoreau]

I'm sort of with joe here: I'd like to think that a lifetime appointment to the third branch of government should require a more exacting process than a 4 year appointment as Deputy Undersecretary of Agriculture for Mohair Goat Affairs.

Which is not to say that I'm exactly a fan of doing it via a supermajority requirement whenever the minority party throws a fit, or doing it via underhanded procedural matters whenever a single member of the Judiciary Committee gets upset. It would be nice if there were some explicit process for this in the Constitution (e.g. an explicit supermajority of Senators, or some other procedure). I'd be all in favor of such an amendment.

In the mean time, I reluctantly accept the existence of the Senate filibuster for judicial nominees. Maybe I'd be less likely to embrace it if Republicans complaining about the judiciary talked less about religion and more about federalism.

[sidereal]

"C. Boyden Gray cites American Enterprise Institute scholar John Lott Jr. that the confirmation rate"

I thought the correct punctuation for this was:

American Enterprise Institute "scholar" John Lott Jr.

[joe]

No one would take the other side on the merits of the "judges deserve up or down votes" argument the last time I commented on it, either.

[Jason Ligon]

I am not going to pretend to be principled on the issue of filibusters. Here is where I am:

If I could get a lifetime appointment to the supreme court for a judge who cared about individual liberty, I would torch filibusters selectively or universally to get it done. I wouldn't even think about it.

I don't see any special value in the filibuster at all - unless it keeps someone I don't want off of the bench.

It is the effect that we are all looking at. A little honesty would help the discussion along.

[thoreau]

It is the effect that we are all looking at. A little honesty would help the discussion along.

Fair enough, but concerns about unchecked power have some bearing on effects. The GOP talks the good talk about limited government. But in the last several years a GOP-controlled Congress approved, and a GOP President signed, the following:

1) No Child Left Behind--A massive expansion of the federal government's role in education.
2) Medicare Prescription Drug Benefit: The largest expansion of entitlement programs since, well, the last time we had a President from TX (LBJ).
3) Patriot Act: 'nuf said.
4) McCain-Feingold: A gross regulation of political speech.

Now, admittedly all of these measures got votes from Congressional Democrats, and certainly there were Congressional Republicans who voted against each of these items. But the bottom line is that none of these things would have happened without strong support from Congressional Republicans and the President's signature.

Even worse, President Bush, who talks the good talk about freedom, has argued that he has the unchecked power to detain US citizens without trial if he alleges that they are terrorists.

Given all of this, are we really supposed to believe that President Bush will only nominate, and the Senate Republicans will only confirm, judges who care about the Constitution and individual liberty? The Democrats may very well be worse, but have Bush and the Senate Republicans done anything to suggest that they can be trusted with unchecked power over the third branch of government?

Indeed, so much of the GOP's rhetoric on judicial nominations has to do with hot-button social issues and religion. If they said more about abuses of the commerce clause and less about religion I might reconsider my stance. But they aren't even talking about, say, the 2nd amendment (an issue where cultural conservatives and libertarians have more in common). They're talking about God, gays, and gynecology.

(OK, technically abortion is obstetrics, but most OB's are also GYN's, and let's not let semantics get in the way of alliteration.)

So, in a nutshell, this is one of those places where concerns about principle (don't give a party unchecked power) are supported by observations about effects (the current GOP leadership doesn't give a shit about liberty).

[gaius marius]

I don't see any special value in the filibuster at all - unless it keeps someone I don't want off of the bench.

in the end, it's value is PARAMOUNT -- but already compromised.

the purpose would be to avoid the senate being able to commit suicide -- as legislative institutions often have in history. when operating under unanimous consent, the senate has no possibility of decreeing itself effectively insolvent.

that sounds like it could never happen, but it does. the nazi enabling law that ended the weimar republic is not some rare arcana. if a majoritarian group are assured that either their personal political careers or the idealistic cause of the nation will be advanced in dissolution, the filibuster is the weapon that would halt it -- forcing a would-be dictator to nakedly use troops against the senate and hopefully provoking an obvious crisis to be resisted.

kill the filibuster permanently -- which is what republicans are talking about trying -- and the best legislative weapon against a demagogic dictator is forever gone.

[Happy Jack]

joe- judges can be impeached, so technically it's not a life term.

I've heard the argument that instead of having Cheney overrule the parlimentarian, they just hold that the rules of previous congresses don't apply to the present.

Of course, re-writing the parlimentary rules for each session might turn into a clusterfuck. Then again, if they spent time on this it might mean fewer golden bus stops.

[Senator Ted Stevens]

Then again, if they spent time on this it might mean fewer golden bus stops.

I ask unanimous consent to ratify the rules of the previous Senate and move on to appropriations business.

[Senator Robert Byrd]

I second the motion of my distinguished colleague and ask unanimous consent to table the judicial nominations and move ahead with consideration of an omnibus spending bill. I also ask unanimous consent for the inclusion of an amendment that would name 3 more West Virginia post offices after me.

[joe]

Jason Ligon, you're shitting on the future for a transitory political advantage.

[NoDamnBody]

This is exactly what you get when you only have two major parties and a winner take all mentality. If there were a third major party with enough Senators such that no one party had more than 50% they might actually have to work with each other instead of both power hungry sides playing these idiot games.

Too bad the Libertarian party's too busy smoking pot to actually get anybody elected.

[Jason Ligon]

joe:

If I thought the filibuster was a significant protector of anything, I would probably agree with you. I don't, though. It is a goofy artifact of history that has some good and some bad. It does not make a lot of sense in the abstract, and is much more likely to be used for petty purposes as anything else. "Ha Ha! We lost the elections, but our super minority can freeze up everything just to make you look bad!"

More substantially, I think the value of the filibuster as a check on power is being overstated by my libertarian bretheren. What the filibuster does is prevent significant change to the status quo. It is worth noting that no libertarian will ever sit on a bench of importance as long as the filibuster exists. It may be that the grand dragon of the KKK could be prevented from wearing dark robes in similar fashion, but I don't think that would happen anyway. Maintaining the filibuster is destroying hope for significant change through the legislative process.