14 Senators Who Averted Nuclear Filibustering

Well, just like the Cold War (without the freedom ringing part), the big hoo-hah over the filibustering of judicial nominees ended with a whimper not a bang, thanks to 14 senators (seven from each party).

Under the deal, Democrats -- who hold 44 of the chamber's 100 seats, plus the support of an independent -- agreed to allow final votes on Texas Supreme Court Justice Priscilla Owen, California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William Pryor, all nominated to U.S. Circuit Courts of Appeals.

Democrats still refused to agree to allow votes on William G. Myers III, a former lawyer for the Interior Department, and Henry Saad, a Michigan state judge.

The negotiators trumpeted the deal as a victory for the historical role of the Senate as a chamber that operates on consensus and collegiality.

"In a Senate that is increasingly polarized, the bipartisan center held," said [Democratic Sen. Joe] Lieberman. "The Senate is back in business," added [Republican Sen. Lindsey] Graham.

Whole thing here.

Comments

[fyodor]

I say the Republicans won. Which only makes sense since they had the votes. They get to keep the filibuster (which they may need themselves someday in the future) and they get to look like they're being fair to the poor minority party, but they get the votes on the judges that are what they really wanted all along. All the Democrats got was a hand removed from their throat. Minority sucks when majority rules. But it's better than all the other systems that have been tried, yuk-yuk.

[Axel Kassel]

"The Republicans won"? Let's see. Reid went for it. And on the nominally Republican side, we find the Big Wind from Arizona, the Rhode Island Space Cadet, and the Miss Congeniality Twins from Maine. Sure, that computes.

[Jason Ligon]

Fyodor, I respectfully disagree. The dems won this. The Republicans only got votes on three of their nominees (less than 1/3, if I recall) and a promise not to filibuster unless, uh, the Democrats thought it was important. Since obviously the remaining judges won't be voted on because they are so extreme, you can see how effective this whole concept really is. Everything not a donkey is extreme by definition. The republicans gave up everything for the sake of 3 judges one time, even though they were operating from a position of strength. Very poorly played.

[Mr. Nice Guy]

Congress is like the Middle East. When these assholes choose to get along instead of stabbing each other in the back, it's time to start worrying.

[Jason Ligon]

Wait, reading this again. Were there only 6 pending? That doesn't sound right ...

[fyodor]

Jason Ligon,

Good points. I wasn't paying attention to the total number of judges at stake, and I agree that the Democrats' promise is meaningless. But then, what's to keep the Republicans from going nuclear again if the Dems, so-to-speak, renege?

[Neb Okla]

So based on the Lott calculation, this puts Bush in position to tie Clinton for the percentage of judges that got a vote.

Let's get that senate working on matching Clintons rate of Whitehouse intern BJ's.

[gaius marius]

the winner, folks, is one john mccain.

in recruiting seven from the 55, he trumped frist and has become the white house's keeper on any supreme court nominee they send to the floor. he took frist's power.

it's an immense coup for him -- and only serves to reinforce his popular image as a moderate republican who might be able to curb the fascist/religious right while still appealing to angry republicans.

but the filibuster is far from saved. the democrats will now have to run any filibuster past mccain first.

[trainwreck]

Does Mr. McCain still have presidential ambitions?

[Number 6]

The important thing is that the Senate is back in business.

Just wonderful.

[dead_elvis]

What's the big problem with Saad? Geez, I feel sorry for the guy, nominated so many times and always jerked around. Everybody thinks compromise is so great blah blah blah, but it sure sucks to be him.

[R C Dean]

The Repubs were robbed blind.

They would have been much better off to have the vote on the filibuster now. As it is, they have either (a) given up much of their flexibility on this summer's inevitable SCOTUS nominee, since the nominee will have to be one no Democrat has an objection to, or (b) have the filibuster fight again in the much more high stakes arena of a SCOTUS fight.

How a total dink like Reid manages to control the Senate agenda with 44 votes is beyond me. Truly, the Repubs are the Stupid Party.

[Steve M]

The best part: left wing nuts and right wing wacks screaming like crazy!

[Mike]

The best part: left wing nuts and right wing wacks screaming like crazy!

That's what convinced me it was probably a good compromise.

[joe]

RC,

"How a total dink like Reid manages to control the Senate agenda with 44 votes is beyond me." He obviously has more than 44 votes, at least on this question. From your pov, would losing a floor vote on the Constitutionality of the fillibuster have been better for the Republicans than this compromise?

[R C Dean]

I waffle on the use of the filibuster at all, much less in this context.

Still, I think its pretty clear that the Dems cleaned the Repubs clock on this deal.

The Dems gave up nothing - those three justices were going to be approved regardless, because they were judges that the filibuster would be nuked for.

The Repubs gave up a good strategic position for nothing.

[R C Dean]

joe, if Reid has more than 44 votes on the filibuster, it only speaks even more to the weakness of the Republican leadership.

They had a very easy position to explain ("we just want everybody to get an up or down vote. Is that so much to ask?") and they got their clocks cleaned.

By a dink like Harry Reid. We're not talking Lyndon Baines Johnson or Patrick Moynihan here. This isn't one of the giants of the Senate, this is a midget. More than man enough to hand the Republicans their giblets, though.

[Mark Bahner]

"The Senate is back in business," added [Republican Sen. Lindsey] Graham.

D-oh!

[deron]

Dobson of Focus on your Privates doesn't like it.

That's good enough for me.

I figured this whole thing was going to blow up on Frist if he carried it off. As it turns out it probably will save him since they can demagogue about the Trader Republican's who didn't toe-the-line. Frist has been given a reprieve to pursue his ambitions. Though his supporters may view this as a weakness on his part for not acting sooner.

[joe]

"The Repubs gave up a good strategic position for nothing."

If they had good strategic position, they would have pressed their advantage. It's not as if the current Republican leadership has been shy about running roughshod over their opponents when they have an advantage. The Republicans cut their losses.

"They had a very easy position to explain ("we just want everybody to get an up or down vote. Is that so much to ask?") and they got their clocks cleaned." Fortunately for the Dems, the behavior of the GOP over the last five years made their position ("It's bad for one party to control everything, without checks on their power.") equally easy to sell. A more respectly, less overreaching party would not have made the dangers of one-party control so obvious. But then, a more respectly, less overreaching party wouldn't have precipitated this crisis by locking the opposition completely out of the consultations, and wouldn't have nominated so many young, unqualified, unethical radicals to the bench.

Your assumption that Reid is a lightweight who only manages to pull out victories because of the incompetence of his adversaries is the mirror image of those Democrats who used to insist that George Bush was too dumb and poorly spoken to have any real political skills.

[panurge]

The "old guard" won. Sure, Reid was happy, but only because his side had more to lose. Frist seemed upset, as did some of the hard-right senators like Jeff Sessions (Alabama), but I think that's evidence that Frist was dead-set on killing the filibuster ever since he announced the idea.

If Reid really had his way, he would have pulled three more Republicans (McCain, Chaffee, and Snowe already having stated they would have supported the filibuster) into his camp, kept the filibuster in place, and killed all seven of the nominees. But he was unsure as to which Republicans would support him (Mike DeWine said in the press conference that if it came to a vote, he would have backed Frist), and knew he would take a lot of the blame if his side lost. So he basically ended up taking what he could get.

Thus, the victors were the older senators, like Warner, McCain, and Spector. They didn't have the warpath mentality of the hot-blooded freshman Republicans (most of whom got their start in the House, a much more violent battleground), and generally felt uncomfortable with altering rules- even if those rules were problematic to begin with- over one battle. After all, doing so would set an ugly precident; even if you object to the filibuster, do you really feel comfortable with the majority feeling safe in changing other rules in the future that prevent them from getting their way? Some of those angry young Republicans, plus freshly-empowered leaders like Frist, would have felt remorseless in doing so.

All in all, I think this was the best deal both for which both sides could have hoped.

[panurge]

And just to make everyone feel better, Jimmy Dobson is pissed. I got this from "The Moderate Voice:"

"James Dobson is furious and promises revenge aimed at moderates in both parties at the polls:"We are grateful to Majority Leader Frist for courageously fighting to defend the vital principle of basic fairness. That principle has now gone down to defeat. We share the disappointment, outrage and sense of abandonment felt by millions of conservative Americans who helped put Republicans in power last November. I am certain that these voters will remember both Democrats and Republicans who betrayed their trust.""

Vengence is mine, sayeth Saint Jimmy.

[thoreau]

I don't really know that either side won. It sounds to me more like a compromise. Which, in the libertoid dialect, is a 4 letter word, I realize.

The Republicans got some of their most controversial (or "controversial", take your pick) nominees but not all of them. The Dems got a promise that they can get away with filibustering more nominees in the future, but they'll have to be sparing with it or the Republicans who joined them in this will switch sides.

In other words, the Dems get to keep the filibuster if they promise not to use it as often. Only somebody who's way too far to one side or the other will see that as anything other than compromise. The Republicans don't get the unchecked power that they want, but they get more than the Dems would like them to have.

I'm glad that some semblance of checks and balances was maintained, but I am (of course) saddened by this statement:

"The Senate is back in business,"

Dun-dun-dun!

[gaius marius]

"How a total dink like Reid manages to control the Senate agenda with 44 votes is beyond me." He obviously has more than 44 votes, at least on this question.

wadr, mr joe, reid now controls only 37. this is not a dem win. the only thing sillier to suggest is that it's a republican win. mr dean, with this

They had a very easy position to explain ("we just want everybody to get an up or down vote. Is that so much to ask?") and they got their clocks cleaned.

you prove you either know nothing of parliamentary politics or are a total partisan hack. there's nothing easy to explain about destroying any semblance of minority rights in washington.

frist and the white house got outmaneuvered by mccain. mccain just became the primary power broker in the senate. if he keeps his 14 together, they are effectively a third party on every major issue and control senate debate. it's a major power shift -- away from both the republican and democratic leaderships, and toward mccain.

i'm not surprised that dobson is throwing a hitlerite tantrum, and i wouldn't be surprised to see a crazy or two take a shot at mccain in future public speaking events. if abortion doctors merit murder, what of the man that killed god's will in the senate?

[gaius marius]

All in all, I think this was the best deal both for which both sides could have hoped.

agreed, mr panurge -- but it's far from good, isn't it?

[gaius marius]

In other words, the Dems get to keep the filibuster if they promise not to use it as often.

and who is the arbiter of reasonable use, mr thoreau? john mccain's seven republican coalition. if he keeps them together, reid will have to run every filibuster past mccain.

likewise for the republicans, who just lost their majoritarian power. any rule change has to be run past mccain first. any supreme court nominee has to be run past mccain first. if they don't, he can ensure its futility.

for however long the coalition holds up, mccain is the second most-powerful man in washington, i suspect.

[joe]

gaius,

"mr joe, reid now controls only 37" Perhaps I should have been clearer - Reid "controls" more than 44 votes on the question of abolishing the judicial fillibuster via an indefensible reading of Senate rules. Those seven Dems didn't stop supporting his position on that question when they went on record in support of the compromise.

[thoreau]

for however long the coalition holds up, mccain is the second most-powerful man in washington, i suspect.

Let's see: Greenspan, then Cheney, then McCain. I say third most powerful.

And if we include women in the mix, Sandra Day O'Connor is more powerful than McCain as well. She's the 5th vote on almost every single 5-4 decision.

[bigbigslacker]

gaius, "minority rights" is fairly complicated stuff, but anyone who thinks these veteran politicos have any integrity is also a no-nothing or political hack: (I didn't fact check the following, but it seems in line with what I've read elsewhere)

http://www.politicalgateway.com/main/columns/read.html?col=350

[kmw]

James Dobson is furious and promises revenge aimed at moderates in both parties at the polls.

Looking at the Bush vs. Kerry numbers, it seems like the religious right is bumping up against their maximum vote-getting potential. It looks like he flexed all the political muscle he had (including the "Justice Sunday") and lost. This may be proof positive how little influence the religious right really has.

I'd love to see Dobsons of the world pull out of the Republican coalition for their own, third party -- and bring the GOP back to a more moderate position.

[Jason Ligon]

Give me a break guys. This is not a lasting coalition. They are not the arbiters of reasonable use of filibusters, as there is no requirement that they be consulted. The minority party is the arbiter. All they got was a Dem promise to 'really really' be concerned before they filibuster again. Oddly, they seem really really concerned every time someone other than a de facto democrat is nominated. Critical of the welfare state? That's EXTREME! Critical of Roe v Wade? That's EXTREME! Confirm individual right interpretation of the 2nd? That's EXTREME!

RC is correct in that the Repubs gave up too much for too little. They were killed by the squeamish among them. The SCOTUS chair is the prize, and the threat of eliminating Dem ability to filibuster that one was very heavy weight. A unified Repub party unquestionably could have gotten all of these nominees in, which would have been a win, or killed the filibuster, which would have been a bigger win.

The party at large got outmaneuvered by McCain in this situation, but I don't know that this tells us anything about what happens from here on out. I just don't see why that many Republicans would effectively want to hand control to the Dems.

[gaius marius]

Reid "controls" more than 44 votes on the question of abolishing the judicial fillibuster via an indefensible reading of Senate rules.

except, mr joe, that reid doesn't control them. these seven are off the democratic books on procedure -- it's no longer a two-party body on these issues. reid's team was ready to fight the good fight -- and lose, probably. mccain's coalition saved reid a terrible embarassment.

and marshall over at tpm points out the lindsey graham says they ain't done yet -- they'll have more to say on social security! i find it hard to chaacterize as something other than a major loss for leadership on both sides.

anyone who thinks these veteran politicos have any integrity is also a no-nothing or political hack

agreed, mr slakcer. mccain is still the Man from The Keating 5 to me. they're self-serving, and they played their hand beautifully. both sides now have to kowtow to these 14.

[gaius marius]

RC is correct in that the Repubs gave up too much for too little.

i disagree, mr ligon -- i think their militancy opened the door for a rebellion, and mccain orchestrated it. they asked for far too much to begin with and refused to compromise, hoping to be appeased -- militant politics. worked in the ruhr valley. worked in the sudetenland. didn't work here. 😉

they had no choice on what to give up in the end. not their option. frist wasn't even consulted on the deal! if you think that this was frist's choice in any way, you aren't seeing what's really happened, imo. frist's (and bush's and dobson's) choice was "no prisoners". they failed.

This is not a lasting coalition

maybe not. but lindsey graham says more is coming.

[R C Dean]

you prove you either know nothing of parliamentary politics or are a total partisan hack. there's nothing easy to explain about destroying any semblance of minority rights in washington.

gaius, I suspect I have spent far more time face to face with legislators in capitol hallways than you have, and know a little more about parliamentary politics than you ever will.

Do, please, tell me where "minority rights" are reflected in the "advise and consent" clause of the Constitution. It ain't there. Which is why the filibuster has nothing to do with checks and balances, which exist between branches of government, not between political factions.

The filibuster is nothing more than the arrogation of power by the group that lost the last election. It has no (zip, zero, nada) Consitutional basis, and historically has been used to repress reform that would advance genuine minority rights (as in racial minorities, not political minorities).

Make your case for requiring a supermajority if you can (and there is a case to be made), but don't pretend that there is anything more going on in the Senate than arrogance, power politics, and self-serving cowardice.

As to whether I am a hack or not, have you noticed that I am critical of Repubs here (scroll up a tad, to the post on the "Stupid Party"), and over at my home blog samizdata.net? Thought not.

Still, better a hack than a reactionary crackpot.

[thoreau]

don't pretend that there is anything more going on in the Senate than arrogance, power politics, and self-serving cowardice

Exactly. Which is why I don't want either of the self-serving arrogant factions to have complete run of the place.

[joe]

"Oddly, they seem really really concerned every time someone other than a de facto democrat is nominated."

Who knew that George W. Bush has spent the last five years appointing 200+ "de facto democrats" to the federal bench? Thanks, Jason!

[joe]

"I suspect I have spent far more time face to face with legislators in capitol hallways than you have, and know a little more about parliamentary politics than you ever will."

Which he then goes on to demonstrate by claiming that the Constitution is the only source of Senate procedures, and ignoring its explicit statement that Congress can set its own rules.

And since "states rights" have "historically has been used to repress reform that would advance genuine minority rights (as in racial minorities, not political minorities)," I trust you oppose that doctrine just as strongly as you (suddenly, as of a few weeks ago) oppose the fillibuster. After all, you're so genuinely committed to the principle of majority rule on questions like economic assistance for the poor and environmental regulation, and aren't at all adopting a convenient position out of "arrogance, power politics, and self-serving cowardice."

"Still, better a hack than a reactionary crackpot." Apparently, it is better still to be both.

[thoreau]

I second joe. I'm kind of curious to know what a "de facto Democrat" is. Or, more to the point, what's the difference between a "de facto Democrat" and a standard Republican appointee?

I know the difference between a "de facto Democrat" and my ideal vision of a judge, but I'm not sure that Bush is nominating my ideal visions.

[joe]

Other Congressional practices not mentioned in the Constitution: committees, party leaders, whips, roll call votes, unanimous consent, recognition of members for set amounts of time.

The Constitution's directive that the federal government set up a Navy doesn't actually contain the words "cannon, sailors, or lifeboats." That's ok, because we know what a Navy is, and how it works.

[gaius marius]

where "minority rights" are reflected in the "advise and consent" clause of the Constitution. It ain't there. Which is why the filibuster has nothing to do with checks and balances,

mr dean, does it have to be in the constitution to be a check? no. clearly, the body is to set its own rules. and clearly, unanimous consent has served the senate and the people very well. the senate was always designed to be the deliberative, elitist center, resistant to majoritarianism and populism. it has been a continuing body by design from the start. pray god it always is.

historically has been used to repress reform

exactly. your most severe limitation in understanding good government, it seems to me, mr dean, is that you can envision no instance in which the popular cause du jour should not be enacted. THANK GOD the senate represses reform! while you choose to remember every reform as noble and true, i remember other reforms enacted by delusional majorities -- like the 1933 enabling act.

the most important reason for unlimited debate and unanimous consent is the protection of the senate from itself. revoke the filibuster with this paltry bit of constitutional revisionism, and you remove the largest parliamentary obstacle against tyranny. surely, mr dean, you can see that in light of the history.

ah, but maybe not. maybe you care little for the past.

i can only imagine that republicans, deluded by power, can't envision a day in which they are powerless to stop powerful democratic majorities from ramming through law dissolving the american government in favor of united nations administration under a world government. but you should consider it, mr dean -- unless you mean to simply stop holding elections now.

don't pretend that there is anything more going on in the Senate than arrogance, power politics, and self-serving cowardice.

who's pretending that? don't think i want Mr. Keating 5 running the senate from now on.

but let us not pretend either that this has to do with a disposable lot of fuckknob judges. they are mere pretext to removing the legislative branch's most effective defense against majoritarianism for temporary advantage. even if bush doesn't conceive of that as being an objective, it nonetheless would be seen as exactly that in an inevitable future history of american dictatorship.

[stubby]

I don't normally agree with much of what gaius writes, but I hope he's right here. Yes, they're all power-hungry, unprincipaled partisan hacks and no, I don't trust any of them, but because I'm not (yet) wise and rational enough to call myself a Libertarian, I usually vote Republican on the national level, but I have no truck with the hardcore religous conservative wing of the party. So, if gaius and others agreeing with him are correct that John McCain and the moderates have just set themselves up as a Bloc to Be Contended With on the Republican side, I'm happy. Now if only the Dems could get a similar bloc within their party to restrain their own brand of hardcore zealots.

And if the religious conservatives (note: I don't think they're facists or theocrats or fanatics or anything else - I just don't agree with them) (ok, Dobson is a wingnut) have indeed run into their maximum vote getting potential, I'm cool with that too.

I can't help it, I really like McCain, although I think McCain Feingold is the work of the Debil.

[R C Dean]

gaius marius demonstrates why it is so difficult to take him seriously by attributing the following to me:

your most severe limitation in understanding good government, it seems to me, mr dean, is that you can envision no instance in which the popular cause du jour should not be enacted.

Good one, gaius. You are, after all talking about someone who thinks that somewhere north of 2/3 of everything done by or demanded of our national government is prima facie illegitimate and unconstitutional because it exceeds the national government's enumerated powers. That's really someone who blows with the popular wind.

Remember, gaius, when you say "THANK GOD the senate represses reform", that you are praising Senator Byrd's use of the filibuster to preserve Jim Crow. Anyone who thinks the filibuster is protecting us from tyranny has truly taken leave of their senses.

I said he was a reactionary crackpot, and gaius' reply does nothing to prove me wrong.

[gaius marius]

There is absolutely no Constitutional basis whatsoever for the filibuster, and the Senate, which as you so kindly pointed out has the power to set its own procedures, can eliminate it, either in its entirety or as applied to judicial nominations.

how, then, was it to be declared unconstitutional, mr dean?

[gaius marius]

Anyone who thinks the filibuster is protecting us from tyranny has truly taken leave of their senses.

because every reform is good -- right, mr dean?

[joe]

"I have no doubt that, five years from now, you will be cheering the Senate Democrats on as they drop the nuclear option on the Republican minority attempting to filibuster President Hillary!'s nominees."

First, I doubt Mrs. Clinton will adopt the imprudent punctuation graphics of Lamar! Alexander.

Second, I didn't adopt such a position the last time a Republican Senate irresponsibly blocked a President Clinton's nominees; why would you presume that I would do so the next time?

Third, the characterization of politicians as "unwise partisan hacks" is exactly why there need to be checks placed on the power of majorities.

[joe]

BTW, I typed the word "respectly" not just once, but twice.

I just want proper credit for my grammatical goodishness.

[Steve]

thoreau,

I think Janice Rogers Brown is a pretty ideal judge for most libertarians or Libertarians. She's as good as we'll ever do, that's for sure.

[thoreau]

Steve-

So, the next question is, is she just a bone being tossed to libertarian Republicans while the theocrats get red meat?

I don't know the answer, but I'd like to know it before I sign off on unchecked power for a generally reckless bunch.

[Steve]

"The Constitution's directive that the federal government set up a Navy doesn't actually contain the words "cannon, sailors, or lifeboats." That's ok, because we know what a Navy is, and how it works."

joe, are you saying that a legislative body, by definition, has to include filibusters? Seems to me that you could have a legislative body with or without unlimited debate. It's a procedural thing -- it's also morally neutral. There's nothing inherently "right" or "wrong" about allowing a Senator to talk all night vs. making him shut up after a set amount of time. Unless you propose making them all shut up after 30 seconds whenever a TV camera is nearby. That would be morally right.

[gaius marius]

fwiw, as a way for actual conservatives (but probably not militant bushites) to regain some perspective in the apocalypse of actual compromise, read bainbridge on this point:

The filibuster is a profoundly conservative tool. It slows change by allowing a resolute minority to delay - to stand athwart history shouting stop. It ensures that change is driven not "merely by temporary advantage or popularity" but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule?

Proponents of the "nuclear option" claim to believe that abolishing the filibuster could be limited to judicial nominations. It's a coin flip as to whether this is naive or disingenuous. It's a slippery slope to abolishing the filibuster as to Presidential nominations or even legislation. Would the GOP be tempted to abolish the filibuster if necessary to put John Bolton at the UN? Or to ram through social security reform? Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don't have the filibuster then? Our slim majority in the House?)

I've been as critical of Democrat obstructionism as anyone. But even in the unlikely event that pulling the trigger on the nuclear option would have guaranteed that every one of President Bush's current and future nominees ultimately would have passed a confirmation vote, the cost still would have been too high.

it isn't conservative in the slightest to dismiss the filibuster -- indeed, its a hallmark of baseless militant radicalism. it doesn't particularly matter if you're a republican or democrat; supporting the destruction of the filibuster puts you in the radical futurist wing of either camp, be it fascist or communist, whether you understand yourself to be in that group or not.

[gaius marius]

more from bainbridge here.

[joe]

Steve,

I don't think a legislature has to have a fillibuster to be a legislature. I'm refuting the assertion that the fillibuster is unconstitutional, or even that the constitution is neutral on fillibusters.

I suppose the early Navy could have come up with some kind of ship board weapons system besides the cannon, but when the drafters directed the government to commission a Navy, in a world and during a period in which navies had cannons, they were implicitly supporting the arming of ships with cannon.

[Steve]

throeau,

I didn't say we should sign off unchecked power to Dubya because we're so happy he nominated Brown. I'm just saying that one side effect of this mess is a rare bit of good news for libertarians. I don't think Bush has to do anything to placate libertoid Republicans -- he's already shown he doesn't care about them. I'll still take what we can get.

[Steve]

OK. I still think the Constitution is neutral on filibusters. I don't know enough about legislative procedural history to know whether filibusters are like cannons (in other words, so common that there's an implicit support for them in the Constitution). It's much easier to imagine a legislature without filibusters than a Navy without cannons.

I don't even know why I'm arguing this point. I care so little about the filibuster issue, it's hard to even explain how little I care. It is nice that Janice Brown will probably get confirmed, though.

[R C Dean]

Anyone who thinks the filibuster is protecting us from tyranny has truly taken leave of their senses.

because every reform is good -- right, mr dean?

I wonder, when gaius looks at a screen, does he see the same words everyone else sees, or does he see something else entirely? I can't imagine that anything I have ever written could ever lead anyone to beleive that I believe "every reform is good."

I will say this, though: while the filibuster is probably neutral in theory, given the current state of American government, it is likely to be used to protect a profoundly anti-libertarian status quo. Given the degree to which bloated, intrusive, and unconstitutional government is enshrined at the national level, the filibuster is a tool for blocking changes that will reduce bloated, intrusive, and unconstitutional government.

While the filibuster may be inherently conservative, I'm not so sure that the current contours of American government need to be preserved in their entirety. I guess that's why I'm not a conservative, but a libertarian.

I'm curious, though, gaius - can you give us an example of the filibuster being used to protect us from tyranny? It sure hasn't protected us from such abominations as the income tax or the war on drugs, so just what has it done for us?

[R C Dean]

First, I doubt Mrs. Clinton will adopt the imprudent punctuation graphics of Lamar! Alexander.

Then you missed her advertising for her first campaign.

[gaius marius]

I'm curious, though, gaius - can you give us an example of the filibuster being used to protect us from tyranny? It sure hasn't protected us from such abominations as the income tax or the war on drugs, so just what has it done for us?.

i've been looking all afternoon for a comprehensive catalogue of its invocations and haven't found it -- which is amazing. if anyone finds one, please post it. its been used a lot.

but, as a "libertarian", mr dean, perhaps you appreciate that it was woodrow wilson, in a blind rage, that forced a cloture rule in 1917 -- as eleven senators attempted to keep america out of the pointless destruction in europe with the filibuster.

[gaius marius]

it is likely to be used to protect a profoundly anti-libertarian status quo.

lol -- and thank god for that! all we need is a randian to win the office and nuke russia in the first ten minutes, forcing the darwinian struggle for superiority!

[Dynamist]

the filibuster has nothing to do with checks and balances, which exist between branches of government, not between political factions

I agree, R C.

The two major factions used rhetoric suggesting this issue was of uncompromisable principle. Now, it is compromised. Where is the principle or character of these Senators?

Arguments about the "balance of power" being better served when one party is not in control of all branches seem misplaced. Such argument elevates the structure of government above the function or action of government. What matters in the end is what the state does, not the type of animal is on the yardsigns. The idea of party politics intereferes with the individual representatives' duty to vote as they see best on each question. It is a delegation of moral responsibility, of which I disapprove.

A minority party can advise, withold consent, and bring the action of the majority to the voters' attention. It is not powerless, even if the majority has the ability to pass all its propositions. There is a check against majority power that seems ignored: time. The Stupid party will be in charge only until the next election. Their power may then be renewed, but it is not eternal. Even the term of a Justice is not really that long.

Wouldn't the "balance of power" be best served with multitudinous parties? Would joe, or an anti-joe, be willing to remove the procedures and laws that hamper the development of multiple parties, all for a better balance?

And ultimately, the first check on all branches of government is an armed populace.

[R C Dean]

gaius, do you truly believe that the current bloated and corrupting nanny state, with its trillion dollar wealth transfers and astronomical debt, is perfectly ideal and not in need of fundamental reform?

Can you truly imagine no improvement whatsoever on the status quo?

Well, brace yourself for disappointment, because its agonna change, and most likely in the direction of greater state control. Your precious filibuster will do nothing to prevent the gradual spread of, what was the word? Oh yeah, "tyranny."

[Wellstone!]

Hey! I combine liberal punctuation with a better haircut than Hillary! or Lamar! Too bad the neocon conspiracy crashed my plane.

!!!

[gaius marius]

the filibuster has nothing to do with checks and balances, which exist between branches of government, not between political factions

wadr, mr dynamist, i think you're wrong. certainly, we can envision a senate unable to prevent authorizing its own dissolution. that's exactly the mode of death experienced by the roman senate and the weimar reichstag. and the filibuster is an exceedingly powerful parliamentary assurance against it.

should the party holding the executive and majorities in both houses also manage to pack the court -- and have dictatorship on its mind -- the minority would be left with the filibuster, armed insurrection and little else. time is no curative. it may be just a senate rule, but its ultimately a vital one.

in all cases to date, however, i agree that its used to enforce a balance of power. but i have yet to see demonstrated what is wrong with that. what is wrong with the president not getting his way on all his judges? what is wrong with nominating some other goddamn judges -- it's not like there aren't any others! why shouldn't they simply concede the point to unanimous consent on this handful and find others to nominate? teh democrats, having been handed their victory, would surely consent to the next batch.

this matter is one of executive arrogance, i fear. the white house wants to diminish the authority and independence of the senate. and i know no lover of republic that desires to appease executive arrogance. the proof of their overreaching is mccain's breakaway group -- and now a similar group emerging on stem cells in the house. the white house overplayed its hand, and now it has a party rebellion.

Wouldn't the "balance of power" be best served with multitudinous parties? Would joe, or an anti-joe, be willing to remove the procedures and laws that hamper the development of multiple parties, all for a better balance?

can't speak for joe, but i favor the european model.

[gaius marius]

gaius, do you truly believe that the current bloated and corrupting nanny state, with its trillion dollar wealth transfers and astronomical debt, is perfectly ideal and not in need of fundamental reform?

Can you truly imagine no improvement whatsoever on the status quo?

surely i can, mr dean! but i can also imagine disastrous setbacks -- not every reform is good, even if the mob is screaming for it.

the point of civilization and law and institution is not to reject all change but to make change slow and difficult, to force larks and fads to pass into foolishness before they can be accepted. i am a conservative -- much more profoundly conservative than virtually anyone here, as near as i can tell. i am not embarassed to force reform to wait for years or decades of deliberation, to take only modest measures first, to use unlimited debate.

why does the administration insist on such speed in affairs? because they're part of the cult of individualist anxiety and the postmodern flight from civility, on a deeper level -- but, more directly, what have they to hide from extended examination? there's no urgency in any of this.

the answer is that this isn't about appointing judges. it's about breaking down the independence and authority of the other branches and the press to ensure an... unrepublican... level of executive dominance. it's been the focus of the entire "war on terror", not to mention the "war on drugs". the bush team is very aggressively something like unquestioned authority. combined with the finances they're running, it's a libertarian's nightmare.

how can you brook that? how can anyone who professes to be libertarian endorse that?

Your precious filibuster will do nothing to prevent the gradual spread of, what was the word? Oh yeah, "tyranny."

i frankly agree. this society's time is up, and we are degenerating into lawlessness in officialdom as the will to power rises on both sides. if i might observe, you sometimes don't seem to see the possibility that the right is not a bulwark against but rather a hardworking facilitator of that deterioration into heroic fantasy. i agree with you that the self-indulgent left has worked very hard to make the republic unworkable. but the greater (by far) immediate threat for tyranny is clearly on the militant, neofascist, idealistic nietzschean right.

i see no reason to condone and encourage it by laughing as they try to destroy the senate's ability to be a thorn in their side.

[Dynamist]

gaius: I think your overestimate the value of the filibuster. Only a small supermajority is required for cloture on the issues where such a manuver is allowed. The Stupid party is already only five Senators awaiting from unleashing the dictatorship you warn against. You might think we're dangerously close to the edge, while I think the cliff just isn't very high. The righties won they election. They have earned the power to staff the courts. Let them, and let's all see how it plays out.

Cataclysmic strife is not the likely product of judges who have already proven competence through lengthy careers. Pick the worst judge nominated, and you'll probably find an ethical and reasonable person. Appointment of genuine extremists would require the Senate to have a majority of extremists, too. The Senators, with some leeway, but within reason, will only endorse nominees who reflect their views. They became Senators because they reflected the views of the electotrate. If the majority wants tyranny, they will get it. I don't think they want tyranny, and tyranny is probably not supportable under the Constitution, no matter how one interprets the document.

Tyranny doesn't come overnight, nor does it take root in hostile soil. I love rhetoric more than most, but authoritarianism seems so far outside this debate, that to threaten such makes it difficult listen for whatever valid point s are inside the talk.

On the European model, I've watched a bit of Parliament on C-SPAN. Charles Kennedy can't stop the Blair from doing anything, but he does get the word out, and his mouth is probably a better check against tyranny than any parliamentary tactic.

[thoreau]

Steve-

Fair enough. Nothing wrong with identifying silver linings if she's as good as you say.

Oddly, I know very little about her despite having lived in CA for 11 years. The state Supreme Court just doesn't attract much attention.

[joe]

RC Dean isn't completely wrong about the anti-progressive, anti-reform drawbacks to having a fillibuster. From Strom Thurmond to Robert Byrd, there have been numerous cases of it being used to thwart genuine progress.

As a wise man once said, there are two great traditions in this country's political culture, the conservative and the progressive (defining the terms by their dictionary definitions, not as labels for political factions). There has to be a balancing act between them, and the fillibuster is a thumb on the scale for conservatism (not the radical nationalist/theocratic ideology that goes by that name today, but the "let's not get ahead of ourselves, now" school of thought).

As I've said before, the fact that judicial appointments are uniquely irrevocable of all the business done in the Senate, and the fact that the judiciary is supposed to be above partisan politics, make them the most appropriate circumstance for a fillibuster or other supermajority requirement.

The case RC lays out against the fillibuster on legislation, on the other hand, is pretty tough to argue with.

[Jason Ligon]

From waay up there concerning the de facto Democrat:

A de facto Democrat is any judge who holds views that the entirety of the liberal platform is within constitutional bounds. An EXTREME candidate is one who thinks wacky things like that the commerce clause is overused or that roe v wade is based on shoddy reasoning. I'm not an anti abortion guy, but come on. I'm not making this up. All you have to do is listen to the specific criticisms being leveled at the filibustered judges.

It is like jury selection. Informed people with interesting things to say never make it onto the jury. The filibuster gives the minority the power to wipe out everyone except those who think the status quo interpretation of the constitution and legal authority is hunky dory.

[gaius marius]

The righties won they election. They have earned the power to staff the courts.

absolutely -- but within the limits of unanimous consent. it isn't as if the minority said, "we will allow you to appoint no judges." the day that happens, i'm sure we agree, we will be near the end of parliamentary government.

Appointment of genuine extremists would require the Senate to have a majority of extremists, too.

Tyranny doesn't come overnight, nor does it take root in hostile soil.

i think, mr dynamist, that you and i have very different conceptions of how extremist (if bipolar) this country really is, and how receptive it would now be to dictatorship. americans worship their presidents. but that's an entirely different argument. i sincerely hope you're right.

but i must say that, once this weapon is disarmed in this fashion, it will not come back. and someday -- however many days that is from today -- when the senate is faced with the peril of majoritarian dissolution, they would not have this powerful weapon.

[gaius marius]

I'm not making this up. All you have to do is listen to the specific criticisms being leveled at the filibustered judges.

mr ligon, i think the democrats are as lost a cause as the republicans when it comes to idealistic self-indulgence. they bait conflict just as effectively as the republicans; it's only that their stick is shorter now.

the beauty of mccain's construction is that the democrats will have to pass every filibuster through him beforehand if they don't wish to risk the nuclear option. voila! moderation.

[joe]

Jason,

Do you believe that George Bush appointed over 200 people to the federal bench who believe that Roe vs. Wade was perfectly decided, and who have no complaints about the application of the Commerce Clause? Really?

[Jason Ligon]

George Bush appointed 200 people that steadfastly refused to outline a position on the matters, even under direct questioning. There was no clear history of their extremitude. If they thought Roe v Wade were imperfectly decided and had said so in public, they were not being appointed to a politically significant seat.

Again, just like jury duty. There are two kinds of people that survive a scenario where unnanimous consent is required:

1) Those who lie about their positions.
2) Those who haven't thought about them enough to be interesting.