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April 26, 2005

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Both. It helped them then, so they were for it, it hurts them now, so they're against it. The game they're playing is about getting their way, don't expect some silly thing like standing on principal or intellectual consistency to stand in their way.

The ones they wore back when then, or the ones they wear now?

I have that same problem with Sen. Robert Byrd (D - Asphalt).

I have that same problem with Sen. Robert Byrd (D - Asphalt).

I'll wait for you to find the parallel to the Family Research Council to address that deflection attempt. ;-)

t's been widely reported that pro-nuclear-option Republican Senator Bill Frist once fillibustered Clinton nominee Richard A. Paez.

I suggest you read your links before posting, Edward. What does "voted to filibuster" mean?

What does "voted to filibuster" mean?

That he supported the filibuster?

I'll edit it if you think it's confusing, but I assumed that those supporting a filibuster (and does it only have one 'l'?) can be described as having filibustered a nominee, no?

I'll wait for you to find the parallel to the Family Research Council to address that deflection attempt. ;-)

Oh, are you unfamiliar with the Senator's time as Majority Leader?

I've offered two examples, one legislative, one lobbyist, Mac...find a lobbyist one tied to Byrd and get back to me, or don't, I'm just going to accuse you of trying to deflect the issue. ;p

Here's a quick summary

This from a senator who is himself something of a pioneer in filibuster-busting. As Republican Sen. John Cornyn pointed out to us, Mr. Byrd led the charge to change the rules in 1977, 1979, 1980 and 1987, and, in some cases, to do precisely what Republicans are now proposing. In 1977, Mr. Byrd called for rule changes to break a post-cloture filibuster on a natural-gas deregulation bill. In 1979, he advocated the quashing of objections to appropriations bills by having the chair -- not the full Senate, as had previously been the case -- rule on questions of germaneness. His 1980 move changing voting rules for nominations was meant, in his own words, to "deal with a filibuster." In 1987, Mr. Byrd pushed a new precedent ruling out "dilatory" tactics during roll-call votes regardless of whether cloture had been invoked. At a time when Democrats dominated the Senate, Mr. Byrd thought nothing of tweaking procedure to quell dissent.

…now Edward, if you want to believe that lobbyists who supported Byrd's filibuster busting then might not have a different view now… well, let's just say I can make a great deal on that last bridge you walked by. ;-)

I'm not sure about Frist -- perhaps he's only recently heard the Gospel of Anti-Filibuster Jesus -- but obviously the answer for FRC is that God is opposed (for now) only to filibustering judicial appointments, not ambassadorial ones.

Still seems like a stretch Mac.

From this account, none of those "tweaks" would have the long-term impact of stacking the courts. Not parallel.

That he supported the filibuster?

And this makes Republican Senator Bill Frist once filibustered Clinton nominee Richard A. Paez a true statement how, exactly?

From this account, none of those "tweaks" would have the long-term impact of stacking the courts.

Winning elections does that...

Ah, I see I'm falling into the TTWD mold. Therefore: Edward, having voted against cloture in the past may make Frist a hypocrite, but it doesn't make him a filibuster-er.

So, is any of the handwaving about Byrd supposed to be construed as a defense of Frist and/or the FRC, or . . . ?

. . . obviously the answer for FRC is that God is opposed (for now) only to filibustering judicial appointments, not ambassadorial ones . . .

No, the real answer is that filibustering is OK if it prevents people from being exposed to Teh Gay.

Teh Gay

Wasn't she in original King Kong?

Slarti, if you're using filibuster in the strict sense of "read from the phonebook on the Senate floor with no bathroom breaks", none of these judges have been filibustered either.

I assume Frist voted against a motion to close debate on Paez' nomination.

"So, is any of the handwaving about Byrd supposed to be construed as a defense of Frist and/or the FRC, or"

I believe Mac's point is that the filibuster is a political game that one cares about very rarely out of principle and almost entirely based on one's political position. When a party is in power, it makes moves to restrict filibusters. (See Byrd). When it is out of power it can try to exploit the filibuster in ways that might seem illegitimate or might resist changes to filibuster rules that the very same person might have been ok with when he was in power (See Byrd). Much like balanced budget rules, they seem great when your party is out of power and less exciting when they are limiting your initiatives.

nothing

unique

So that's a "No." Noted.

I promise that the next time I travel backwards in time, I will chide Sen. Byrd for his actions. In the meantime, there's the here and now to deal with.

"I believe Mac's point is that the filibuster is a political game that one cares about very rarely out of principle"

Fantastic. Can we now agree not to entertain any arguments that ending the filibuster is a principled position? Frist's tearful "just give them an up or down" exhortations come to mind. Clearly, the Republicans want to modify Senate rules with the single goal of getting their judges, and the Democrats want to exploit those rules with the single goal of preventing those judges. Obviously, 'We must end the filibuster because we want our judges' is a difficult position to sell, but I'm sure we can all agree that it's the case.

I've always thought the filibuster was one of the more elegant features of the Senate. They don't happen often. They prevent the majority from running roughshod over the minority which I think is good (regardless of who the majority happens to be at the time). The burden is also not that high really...the Republicans have 55 Senators right now. So if they can convince 5 Democrats that a nominee isn't completely off the map, end of filibuster, time to vote. If they can't convince 5...well, I like that as a litmus test. Same deal when the Democrats were in office. There hasn't been a super majority (60 or more) in the Senate for, well, a long long time (I'm in finals, so I'm not going to research that one right now). The deal is pretty simple, convince 5 Democrats that these nominees are ok or pick up 5 seats in the mid-term elections.

Once again, sidereal beats me to it. Folks often whine about rules, but then, when the wheel turns, are glad they're there. (The 25 mph speed limit on the arterial by my house is a perfect example: way too slow to be driving, but just fine when I'm walking).

Getting rid of a rule you know you're going to want at some point in the future is dumb, but dressing it up as some kind of high principle -- remember term limits -- is disingenuous.

I have been trying to think about the filibuster in abstraction from current events, and in particular from my immediate reaction, which is: change the rules now? With them in power? You must be mad! And as far as I can see, I'm more in favor of the filibuster for judicial nominations (and especially Supreme Court nominations) than anywhere else, since that's the one area where being conservative (in the literal sense) and consensual seems most apt.

On policy matters, I do think it's a good idea to have some way of making some things a bit more difficult than a bare majority vote, so that the whim of a moment doesn't become law if a substantial minority is strongly opposed; but I find I am less interested in allowing a majority to block it in perpetuity than in allowing it to do so for some period of time -- a sort of cooling-off period. Maybe allowing one bill to be filibustered for no more than four years, at which point it could be enacted by a bare majority.

I also favor a return to the good old days of requiring Senators to actually speak for however long, from the floor. I think filibusters should be costly, but available.

Just to satisfy the curiosity raised by Chris's comment, the last year one party had 60 or more seats was 1979, when the Senate had 61 Democrats, 38 Republicans, and 1 independent.

I'm just going to accuse you of trying to deflect the issue.

and i'm going to give him credit for succeeding.

tu quoque all the way.

Dobson and his organizations have pretty well used up any credibility they might have had. I noticed recently that Dobson condemned those who compared Bush to Hitler, but he went ahead and compared the Supreme Court to the KKK. Now this. It's ridiculous.

"I have that same problem with Sen. Robert Byrd (D - Asphalt)."

Me too. I stopped voting for Byrd years ago.

I see, Katherine. I didn't realize that "filibustered" had become synonymous with "voted against cloture". Truth be told, this sort of thing bores me no end. Except when I actually go read a link, that is.

I think Sebastian makes an excellent point, though: filibuster is always objectionable if you're the party in power, and the party in power is going to always try to reformulate rules so they're more favorable. Don't like it? Dunno what you're going to do about it.

"I also favor a return to the good old days of requiring Senators to actually speak for however long, from the floor. I think filibusters should be costly, but available."

I agree with that entirely. Filibusters shouldn't be theoretical. Make the annoying blowhards speak!

hilzoy: And as far as I can see, I'm more in favor of the filibuster for judicial nominations (and especially Supreme Court nominations) than anywhere else, since that's the one area where being conservative (in the literal sense) and consensual seems most apt.

As I said, I'd be happy trading judicial filibusters for a permanent rule change requiring that all judicial nominees receive 60 (or maybe even 66) votes. [And yes, the intent would be to make it apply under Democrats as much as under Republicans.] Given the absence of other brakes on the judiciary -- i.e. electoral disapproval -- I'd rather have a policy that produces "centrist", whatever that means, choices whose prudence and judgement is accepted by a supermajority than "exciting" choices too controversial to be accepted by a scant majority.

That's a systemic preference, mind. There will always be individual exceptions and I'm sure our legal scholars here can find examples without difficulty, but this should IMO be phrased as a matter of system and process divorced from the current debacle.

sidereal: Me too. I stopped voting for Byrd years ago.

I'm proud to say I've never voted for him.

Slarti: I think Sebastian makes an excellent point, though: filibuster is always objectionable if you're the party in power, and the party in power is going to always try to reformulate rules so they're more favorable.

While this is true, I think the way this has been phrased conceals a very dangerous slippery slope. A body like the Senate has essentially no rules save what they inflict upon themselves; there are a few Constitutional provisions but pretty much they're the masters of their own destiny. As such, the majority party has a potentially unlimited scope of power that it can wield subject only to electoral retribution. If the rule changes are sufficiently arcane, who's going to care? If they're going to eliminate the influence of minority parties, well, isn't that just the natural order of things?

The upshot is that if the majority party is willing to entertain arbitrary exercises in pursuit of its consolidation of power, the Senate's utility as a deliberative institution is destroyed because the minority party (or parties) will be mute. [Or, more to the point, muted.] A line therefore has to be drawn somewhere -- and I'm not sure where, incidentally, merely that we have to acknowledge that this line exists and is far closer than is usually credited -- to prevent this kind of whip-sawing escalation, where one party after another turns the Senate into a rubberstamp for their agenda with only the occasional knife-edge tie (e.g. 2000-02) disrupting the monotony.

Worse, what we'll end up getting in the Senate will be the political equivalent of the corporate raiders in the 1980s: get in, liquidate everything, trash the institution for all its worth, and get out again before the electorate votes you out. I'm not overly enamored of the recent generation of Senators, but at least nowadays there's a reason to be in the Senate even if you're in the minority party. Remove that incentive and you've removed the one reason they have to play it safe. The thought of some of the more.... umm... venal Senators giving full license to their venality makes me cringe in places I didn't know could cringe.

None of this, to reiterate, denies the essential truth of your thesis, Slarti. I'm a little worried, however, that such a statement of fact -- those in power seek to increase their power, more or less -- is being used more and more often to justify the rightness of that trend, which is an altogether different matter.

Sebastian: I agree with that entirely. Filibusters shouldn't be theoretical. Make the annoying blowhards speak!

Heck, yeah. Hit that stairmaster, 'cause you're gonna need all the endurance you can muster!

Actually, the antichrist right is following to the letter the description of hypocrisy offered by the well known political scientist, Jesus of Nazareth. Two texts come to mind: "And why beholdest thou the mote
that is in thy brother's eye, but considerest not the beam that is in thine own
eye?" which pretty much covers the Dobson righwingers. There is also the ever popular, "Beware of false prophets, which come to you in sheep's clothing, but inwardly they are ravening wolves. Ye shall know them by their fruits. Do men gather grapes of thorns, or figs of thistles? Even so every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit." I believe Jesus, here, (the quote of course is taken from his seminal study of Rawls Theory of Justice) is commenting on tv evangalists.

The problem is they're breaking Senate Rules to do this. It's supposed to take a 2/3 vote to change the rules. There's a parliamentarian (God, what a job to have) who apparently agrees with the Dems on this, but he can't force them to listen. And no court's going to touch this obviously, it's a textbook nonjusticiable political question.

Did Byrd do the same? It wouldn't exactly shock me, put it that way. Doesn't make it right.

"A body like the Senate has essentially no rules save what they inflict upon themselves; there are a few Constitutional provisions but pretty much they're the masters of their own destiny. As such, the majority party has a potentially unlimited scope of power that it can wield subject only to electoral retribution. If the rule changes are sufficiently arcane, who's going to care? If they're going to eliminate the influence of minority parties, well, isn't that just the natural order of things?"

And really this is the damage already done to the judicial branch by the 1970s judges when they abandoned mooring themselves to the Constitution. It just takes more time for the changes to come about in a branch that doesn't re-elect people every six years.

As I said, I'd be happy trading judicial filibusters for a permanent rule change requiring that all judicial nominees receive 60 (or maybe even 66) votes.

I think I've signified my willingness to make this trade in the past. However, how does one make a permanent rule change? I have an idea.

I'm a little worried, however, that such a statement of fact -- those in power seek to increase their power, more or less -- is being used more and more often to justify the rightness of that trend, which is an altogether different matter.

Nah. If there were a way to prevent it, I'd advocate putting it in the rule book. Unfortunately, the rule book is fluid. As I've suggested in the past, though, there's nothing that prevents us from constraining congressional rules via the Constitution. And of course, given that toast always lands butter-side-down, eventually whatever weakness said amendment might have will eventually be discovered, exploited, and most likely used to achieve the opposite effect from the intended one. So, keep it simple: make it so any rule change enacted by the majority party doesn't go into effect until they're no longer the majority. I can't think that this will only serve to increase the influence of the minority party and balance things out a bit.

Actually, the antichrist right...

Is Satan (or at least Damien*) walking the earth? I do believe I missed that one...

* RECTUS! DOMINUS! CHEESY-POOFS!

And really this fight is the fallout about whether or not it was appropriate for the judicial branch to become what it has become. This is a fight about the fallout of Roe v. Wade--just as the creation of the Christian Right was energized to bother with politics largely in response to the Supreme Court. The reason out-of-control Supreme Courts cause so much damage is because it can take 20 years of political resolve to even hope to fix things.

This is a huge problem with allowing the Court system to become the arbiter of so many important (but not-in-the-Constitution) societal decisions. The wounds caused by getting it wrong take forever to heal--very much unlike electing a stupid Senate or even a bad President. To take a step back from Bush, the long term political effects of maybe 5 years of really will-to-power rulings from the Supreme Court in a row have had a much uglier effect on politics than a term and a half of Nixon and the fallout of getting rid of him.

So, keep it simple: make it so any rule change enacted by the majority party doesn't go into effect until they're no longer the majority.

Simple. Evil. I like.

"However, how does one make a permanent rule change? I have an idea."

Simple, make the rule amendable only with a supermajority. Say, two thirds. That'll keep rules from being amended willy-nilly.


Yes, I know.

I like my evil idea better, CC.

But Sebastian, are you going to need the filibuster after 2009 (or 2013) when you have a Dem appointing judges who are going to be finding things you don't think are in the constitution?

Are any of these judges actually worth losing the ability to play defense later? Justice Brown, for example? The Republic can't get through another month without her ruling on some FERC case? (The DC Circuit is not where the case that allows overturning Casey is going to come from).

There used to be a few ways the minority party could prevent the majority party from running roughshod over it. The "blue slip" holds on judicial and Cabinet nominees come immediately to mind: the GOP used those extensively to keep Clinton's nominees from ever leaving Committe, much less reaching the floor for one of those "up or down" votes the GOP is suddenly so enamored of.

The problem is that tools which were intended to be used by the minority party in order to keep the majority party from untrammelled power have been used by the GOP ever since it became the majority party, precisely in order to wield untrammelled power. The GOP used the minority-protection practices when it was politically expedient to do so - i.e., when there was a Democratic President - and ended the practices the moment it became politically expedient to do so - i.e., when the President was a Republican.

Accusing the Democrats of using "unprecendented" filibusters against judicial nominees goes right past disingenuous to flat dishonesty. The GOP re-rigged the Senate rules to deprive the Democrats of the very tools the GOP itself had used against Clinton. Only the filibuster remains.

There were reasons those "gentleman's agreement" rules protecting the minority party were put into place. The Senate isn't demographically "democratic" the way the House is: there are 2 Senators per state, regardless of how many people in each state. North Dakota gets the same number of Senators as New York, and Utah gets as many as California. The Senate does not, therefore, truly reflect the country's political leanings. A "minority" Party in the Senate could well 'represent' more actual people than the "majority" Party does - as is now the case. That's why those minority party protections exist in the first place: to keep the Senate more deliberative, in a balance of power more reflective of the actual representation.

The GOP, by using minority party protections when it's a majority party, and then by making sure the minority party doesn't have access to those same protections, has tossed out the 'gentleman's agreement.' It's a piece of political chicanery I sincerely hopes comes back to haunt them for a very, very long time.

If I'm not mistaken, Dobson's outfit is Focus on the Family, not the Family Research Council (which is currently run by Tony Perkins). Not that the two aren't close allies (and not at all detracting from the post), but just a clarification.

WRT the DC Circuit, it's easy enough to say that the current Admin deserves to have its chance to nominate any judges blocked. After all, Reps blocked nominations from the prior Admin, claiming that the caseload didn't justify the filling of the vacancies. And the case load has not increased. Nonetheless, there's an easy and painless victory to be had by the Admin: go where you got Judges Roberts and Randolph, and get a couple more. There are plenty of top quality people available, and you'd get a Randolph confirmed right now as easily as he was confirmed in 1990.

"I also favor a return to the good old days of requiring Senators to actually speak for however long, from the floor. I think filibusters should be costly, but available."

Hilzoy, I agree completely!

Sebastian:

And really this is the damage already done to the judicial branch by the 1970s judges when they abandoned mooring themselves to the Constitution.

Even though this argument is nonsense, it at least makes you a moderate, since the current radical right pegs the "un-mooring" in either the New Deal era or, in the real nut-job cases, in the 1800s (for DeLay, Marbury v. Madison).

By the way, I note that despite vigorous litigation by conservative groups and ample opportunities, the rather conservative courts of the last 25 years did not see fit to fix the alleged "un-mooring." In fact, it has apparently extended it, as in Lawrence.

Maybe you should rethink you premise.

Power once grasped is psychologically difficult to give up. You typically just believe that you can wield it better than others.

If I'm not mistaken, Dobson's outfit is Focus on the Family, not the Family Research Council (which is currently run by Tony Perkins). Not that the two aren't close allies (and not at all detracting from the post), but just a clarification.

The FRC was a direct spinoff of FotF -- back form the days when Focus on the Family wasn't "political" but they wanted to put energy and resources into the political scene.

Posted by: CharleyCarp:

"...Are any of these judges actually worth losing the ability to play defense later? Justice Brown, for example? The Republic can't get through another month without her ruling on some FERC case? (The DC Circuit is not where the case that allows overturning Casey is going to come from). "


The GOP has played by the principle of taking everything that they can get now, d*mning the consequences later, and changing the rules as needed.
I wouldn't bet a single penny that, if a Democratic president were to be elected in '08, that they wouldn't just blue slip like crazy.

"Power once grasped is psychologically difficult to give up. You typically just believe that you can wield it better than others."

Exactly. All the more reason not to destroy restraints on power in the Senate. If, as you think, the judiciary is broken, breaking the Senate too is hardly the solution.

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