Occassional reflections of a moderate (hey at least I think I am)

Monday, April 25, 2005

Selective Filibuster History

Over at the Conspiracy, Prof. Zywicki asks, with respect to the filibuster conundrum facing the Senate,

“Is there still some debate going on with respect to Justice Owen, for instance, whose nomination has now been pending for 4 years? Are there some Senators who are still on the fence, undecided on how they want to vote on her nomination?”
Here are a few points.

First, before 4:30 p.m. last Tuesday it was common knowledge that John Bolton would be approved by the Senate Foreign Relations Committee. Somewhere along the line someone presented arguments such that he was not approved by the committee. So, while I concede that there are more than 50 (but fewer than 60) Senators who would support Justice Owen, it certainly is possible that further debate will change some votes. Who knows maybe she, when screaming, chased a clerk through a hotel 10 years ago?

Second, while I think that the distinction Prof. Zywicki makes between a “deliberative” filibuster and a filibuster designed to “kill” legislation (or a nominee) has merit; I think it is a quaint view of the Senate that we could expect Senators to declare whether they were invoking a filibuster to delay or obstruct. How would you police such a distinction? It seems like people want to continually write things into Rule XXII that are not there (in addition to this, some argue that the filibuster should apply to legislative matters but not to executive calendar matters). The Rule does not say “you only get unlimited debate if there is a {realistic?} possibility that extended debate will result in changing votes”. The Rule says (essentially) that there will be unlimited debate unless 3/5 of the Senators say otherwise.

Third, Prof. Zywicki suggests that four years is certainly long enough to debate a nominee and that further debate is “quite clearly an abuse of the power”. I suspect Prof. Zywicki would agree (though I could find no evidence of this) that four years was long enough for Richard A. Paez to be have his nomination considered for the Ninth Circuit but there were fourteen Republican Senators (including now Majority Leader Frist) who would disagree. Now according to Sen. Bennett, ”There was no Republican filibuster on the floor of any circuit court judge” ; so I will not refer to a four year delay as a filibuster. I guess I shouldn’t refer to the fact that Senators would not cease debating the nomination as a filibuster either until cloture was invoked. At a minimum it is an “attempted filibuster”. If there were 41 Senators who had voted against cloture, then there would have been a filibuster. One can be against filibusters and in favor of attempted filibusters (i.e. failed filibusters) but it seems like an odd position to me.

Further, Prof. Zywicki notes that the “non-deliberative” filibuster “may explain why in the public mind the abuse of the filibuster is associated with such stunts as Senators reading names from a phone book, because these sorts of speeches are seen as abuse of the filibuster”. I am not sure what “public” he is talking about but I doubt the “average” Joe knows anything about Senators reading the phone book or other such tactics. It does point out another way out of this mess. If Republicans believe so strongly that Democrats will be punished for using the filibuster against nominees, they could actually make the Democrats sustain the debate. Make them go to the floor and debate the nominees and the Republicans can run TV spots telling constituents to tune into CSPAN2 to watch the Democrats make asses of themselves.

Finally, in Sen. Bennett’s comments above he notes that:
In 1995, there were nine Senators who voted in favor of eliminating all filibusters, not just judicial filibusters, all filibusters--nine Senators still serving, Senator Bingaman, Senator Boxer, Senator Feingold, Senator Harkin, Senator Kennedy, Senator Kerry, Senator Lautenberg, Senator Lieberman, and Senator Sarbanes. They voted in favor of eliminating all filibusters. They have now changed their minds. They have the right to change their minds. And I respect that. What indication do we have they will not change their minds back if we do not get this thing settled in this Congress?
I will admit that changing one’s mind on such an issue may be an outlandish thing, something that calls one’s credibility to speak on an issue. But guess how many Republican Senators voted to keep the then existing cloture rules? 100% Two notable Republicans who believed then that it should still require 3/5 of Senators to require cloture: Bennett and Frist. So if they believe now that the rule should be changed they seem to have “changed their minds”.

Sen. Bennett also observes:

I remember very clearly when President Clinton sent some nominees to this body which members of my conference decided were left-wing whackos, if I might use that phrase. . . . But they felt these nominees were too extreme to be on the bench.

When it was clear we did not have the votes to prevent them from going on the bench, there were those in the conference who said: We have to filibuster. Let's use the filibuster to prevent them. We can muster 41 votes.

The chairman of the Senate Judiciary Committee, my colleague from Utah, ORRIN HATCH, and the then-majority leader, the Senator from Mississippi, TRENT LOTT, both pled with us: Don't do it. Don't start down that road.

That doesn’t sound like a “constitutional” argument to me. Don’t you think they should have said instead “Don’t filibuster because it is unconstitutional”? At it’s core, on both sides, this is a political argument. Can the majority impose it’s will on the minority, you bet. But it is because of political power not because it is “constitutional”.

Personally, I have not had an issue with using the filibuster to “kill” nominees since 1995 when each of my (then) Senators wrote me a letter telling me that they would filibuster the President’s nominee for one of the most ceremonial positions in all of the U.S. government. Unfortunately, now one of those Senators (Sen. Lugar) will not support further filibusters of Presidential nominees; even when the nominees are more consequential than the Surgeon General.


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