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February 06, 2007

Comments

As the resident cynic I predict the answer to the filibuster question to be: Republicans don't oppose the filibuster itself but only that on judicial nominations.
This is (IMO: of course) rubbish and the true answer is: Party 1 opposes the filibuster by Party 2 on principle because it is inconvenient (I think that is true for both parties though the GOP is more adheres to it more strictly)

"They have to get to the budget in the next ten days."

Bush Proposes to Phase Out Medicare ...Dean Baker, House Economist at Tapped

"According to this article, President Bush proposes to change the rules on the means-testing of Medicare benefits, so that the income current cutoffs of $80,000 for individuals and $160,000 for couples are not indexed." ...DB

And Bernanke to a large extent controls inflation. But even without manipulation, the Bush budget sneaks in the inevitable longterm elimination of Medicare. Not even counting the $66 billion in overt cuts.

Somebody might catch this, but I am sure there are plenty of other little games and tricks they will try to slip through in ten days. I am sure they have been planning their strategy and tactics for several months. Let me see, an attack on Iran, Lieberman switching parties, Cheney resigning, and Senator X says don't bother me with details staffer, can't you see I'm busy? And Medicare is killed. 10 days is really tough.

The war in the ME is not and never has been an end for the Bush administration, but a means toward domestic accomplishments. This goes as far back as Bush wanting to be "war President" so he could push his domestic agenda thru. God help us, we should not be distracted by the war.

Yeah, kill millions of people for tax cuts and to starve poor old people. That is who "they" are.

Actually, I think it's even simpler: there'll be a big cry set up of "hypocrisy! The Democrats said they were against exactly the same tactics when they were in the minority party"... and then the issue will turn from whethere the Republicans are being reasonable to whether the Democrats are being hypocritical. In the mean time, the budget's due.

If this was a measure that had any teeth at all, and if the filibuste then mattered, I would chuckle quietly to myself about the flexibility of outrage in politics.

Because it does have a certain symmetry to it.

As it is, though: not so much.

Hey, Slarti. I'm not going back to that damned thread, but apologies for yelling at you yesterday: that wasn't very cool.

during a quiet moment at work yesterday, i swore i heard the voices of millions of citizens desperately crying out for the Senate to fulfill its Constitutional duty and give these bill the Up Or Down Vote they require.

then they were suddenly silenced.

i fear something terribly inside-baseball has happened.

Andrew says it's more important for Congress to try to prevent war with Iran. Jim Henley fears that could make things worse.

KC,

I agree with both of them. A resolution against a war with Iran without explicit Congressional approval would be a Good Thing, but it is likely to not be passed by Congress. And the failure to pass such a resolution will be viewed by the SCLM as support for the President going to war with Iran (even if it failed due to inability to prevent a filibuster with a majority, but less than 60 votes, supporting the end of debate).

Unfortunately, once again, we see the myth of the moderate Republican in action. As has been a cliche about Darlin' Arlen Specter for years in my family, when the chips are down, they will always support the Republican Party leadership, no matter what they say beforehand.

Actually, I don't think it's necessarily more important, I just think that it's not (politically) possible for Congress to stop the war in Iraq, whereas it may be possible for them to stop the war from expanding to Iran. Jim's point is a good one, though, and one I may take up at greater length later.

McManus:

"The war in the ME is not and never has been an end for the Bush administration, but a means toward domestic accomplishments."

We can close Obsidian Wings down now because all else uttered here will be pale footnote to this Rosetta Stone.

Wrecking Baghdad and Tehran is expensive. These are places to sequester "hard-earned" tax dollars (you know, the kind of money that American families sit around the kitchen table divvying up; honey, quit your job because we have too much income -- we'll skimp on Johnny's tumor and spend what's left on spreading viral democracy in places that are immune to it. Now, let's eat out) that might be spent shoring up Medicare and Medicaid rather than killing, sorry, means-testing the programs.

The targets for wrecking are here at home. Every Bush budget is an armory of roadside bombs, set to go off for years.

Bush is good at looking and talking stupid ("I have bad diction, heh, heh.") But he's stupid like a maggot -- relentless, inexorable, diabolical, a zombie eater of flesh, with a real taste for it domestically. The foreign stuff is merely an appetizer.

The quote "hastily written by Democrats", referring to the Democratic resolution, is all I need to know about the effectiveness of Bush's opposition.

As to the Republican hypocrisy on the filibustering issue in Hilzoy's substantive post..............

......... over to you, bril.

The ashes in my mouth are ripe for spitting. Go get it. Make my day.

Perhaps I'm just stupid today, but I'm a little confused as to why it is unbearable to have to put all these silly resolutions to a cloture vote. If Gregg's measure is likely to get 60 votes, then surely it can get a majority. Indeed, if 60 Senators would vote with Gregg, I don't see how any of the others measures could get even a simple majority. So either Gregg's measure would fail to get 60 votes and they needn't worry about putting it to that test, or the Democrats are struggling to get an opportunity to lose this vote. If the argument were over whether the Warner-Levin measure can be subject to a supermajority requirement, I would see the point, but they've already conceded that. So what is the problem?

I don't really see how it's possible to stop the war from expanding into Iran either, even assuming the unlikely event that the "independent" Republicans grow spines. It's clear that Bush doesn't give a damn what Congress or the public think and believes he has the authority to attack Iran without congressional approval, so what could Congress pass that would help?

And that's ignoring the fact that any congressional action is unlikely to get started until things are already too late. Congress moves too slowly. And once an attack has occurred, the Republicans will be rallying aroung Bush even more, and many if not most Democrats will join them.

I think that the non-binding resolution concept is a bad idea all around. It has zero effect beyond politics and messaging. If the Democrats are serious about their position they should sponsor actual binding resolutions and funding restrictions. Anything else appears to me to be just trying to straddle the fence.

They are not in an enviable position. They want to do something to placate their supporters who demand nothing short of a withdrawal. At the same time, they don’t want to force a showdown that could result in losing control of the Senate (Lieberman leaves the caucus, Cheney is the tie breaker). This isn’t making their supporters on the left any happier than those on the right.

So just from that perspective, I think their efforts would be more productive on an Iran resolution. In the Senate at least, I think they would get enough Republicans joining them to make 60. (Not that I would support that, this is just me offering my new overlords free political advice – worth every penny I know.)

On the filibuster: I opposed it last year and I oppose it now. I want a straight up or down vote on everything. I think that strangling legislation with procedural rules is wrong no matter who has the majority.

Actually I'm more in favor of the filibuster for judicial appointments than for almost anything else. Those appointments are for life, and removing judges is hard, so I don't see any reason to have people in those positions who can't get a lousy 60% of the Senate to vote for them.

Hartmut: As the resident cynic...

You realize that you'll have to win a deathmatch with mcmanus for that title, right?

Henley's point linked by KC is very interesting; he adds that "I can’t decide if I’m counseling quietism here or not."

I think the final measure of this point is whether or not it is in fact true that an unsuccessful anti-Iran war initiative would backfire and significantly increase the likelihood of war with Iran. If that was true, then maybe being quiet for now makes some sense. But even then, I doubt it.

The principle of publicly arguing about such an important issue as going to war outweighs the risk that having the argument might increase the likelihood of Bush unilaterally launching the war. Plus the issue can also be framed that he cannot do so without explicit Congressional approval, making it a little harder to spin a defeat of a vote on this as approval.

This is an issue that has been percolating in our political culture for 40 years now, and will not go away. Either the President can take the country into war unilaterally, or not. Either the Republican Party will stand for that proposition, or not. It is not a debate that can or should be sidestepped because of other expediencies.

"All that is necessary for evil to triumph is for good men to do nothing" -- ascribed to Burke but he probably never said it; which reminds me of the snark version:

All that is necessary for evil to triumph is for good men to do nothing but quote Burke.

Not that this is important to the central point, but this is filibustering how, exactly?

"At the same time, they don’t want to force a showdown that could result in losing control of the Senate (Lieberman leaves the caucus, Cheney is the tie breaker)."

It's worth emphasizing this point. Joe Lieberman holds Democratic control of the Senate hostage. See here for a pretty strong indicator.

"I think that strangling legislation with procedural rules is wrong no matter who has the majority."

This may be less well thought out, though. You can eliminate the filibuster by changing the Senate rules, but that won't stop "strangling legislation with procedural rules" for one moment. I'm at something of a loss as to how one could eliminate the ability to "strangl[e] legislation with procedural rules" without eliminating procedural rules, full stop.

We'd have to start by eliminate Congressional committees, or at least their right to vote on what legislation does and does not proceed to their full bodies -- which is the primary purpose of commitees -- just for starters, as well as all the powers of individual Senators. Then we'd have to eliminate all rules that interfere with the full House and full Senate having to vote as whole bodies, on every single proposal and motion brought up by any individual member at any time.

This seems impractical. Although libertarians might be happy, since it would completely paralyze Congress forever and ever.

This may be less well thought out, though.

Yup. You and I have had this exact discussion previously. I don’t have any better answers to your legitimate points this time. I just disagree with a minority being able to prevent a vote. At least I’m consistent when the minority changes :)

This belongs here, not the "Task Force 16" thread I posted it to:

I might add that something I don't understand is the reasoning that says that the only fair and democratic way for a body to vote on all things is by simple majority.

I don't understand what's inherently "undemocratic" about dividing matters into thinks which only require a simple majority, and those that are more crucial, which require a larger majority, such as 60 votes out of 100, or even 65, or 70, or 75, if that seemed wise in some circumstances.

To change the Constitution, for instance, we don't require only a simple majority vote of Congress, or of the people, or of the states; rather we require either a two-thirds vote of both the Senate and House, plus ratification by three-fourths of the States, or of State Constitutional Conventions, or we require a national constitutional convention.

If requiring super-majorities is simply undemocratic in all circumstances, shouldn't we abolish these undemocratic requirements, and simply be able to change the Constitution by simple majority votes?

I think that would be a terrible idea, but that's why I don't understand the reasoning of why requiring super-majorities is inherently always bad.

As regards positions in the federal judiciary requiring them, as KCinDC notes, they're lifetime appointments: requiring 60 Senators to approve seems entirely reasonable to me, though certainly reasonable people can disagree. But I don't accept that reasonable people can't disagree, and that requiring only 50 votes is the only reasonable position.

Maybe someone who disagrees with me can explain why this is wrong.

"I just disagree with a minority being able to prevent a vote."

I don't understand what system you would have us change to. Presumably, to object to a system, you have to be able to point to a better possible one, yes? What system would you have us replace the committee system with? Or... what is it you want?

"I think that strangling legislation with procedural rules is wrong no matter who has the majority."

This may be less well thought out, though.

There are procedural rules that strangle legislation despite majority will and then there are procedural rules that are speed bumps and occassionally do trip up favored legislation. I think OCSteve is just annoyed with the former.

As Gary already said, they key dynamic shaping what is going on in the Senate is that there are only 49 Democrats, and when it comes to Iraq issues, the Republicans on paper have the votes 51-50 (since Lieberman is more than their soul mate on Iraq).

There are several Republicans who are less soulmates with Bush than Lieberman is on Iraq. Two of them voted with the Democrats on this.

"(since Lieberman is more than their soul mate on Iraq)"

To emphasize: Lieberman is vastly more the-Iraq-War-was-a-wonderful-and-absolutely-necessary-idea guy than, at the least, all but a handful of Republican Senators, at this point; even McCain has been far more critical than Senator Joementum.

Goldberg:

“I’ve had a lot of disappointments along the way here,” Lieberman said. “So why do I trust President Bush in spite of the mistakes that were made, consequential mistakes? Because having watched him, having talked to him, I believe that he understands the life-and-death struggle we are in with the most deadly and unconventional enemy, Islamic extremism. And that he has shown himself, notwithstanding all these mistakes, willing to go forward with what he believes is right for the security of the country, regardless of what it has done to his popularity.”

“Isn’t President Bush responsible for losing this war?” I asked.

“Insofar as you have to hold the Chief Executive accountable, he bears responsibility for the mistakes that were made on his watch,” Lieberman said. “But I think he understands that now. And, look, Rumsfeld is no longer there. Gates”—Robert Gates, the new Secretary of Defense—“is there. There are a lot of changes happening. We’ve got a totally new plan for how to succeed in Iraq.”

And:
“A lot of Democrats are essentially pacifists and somewhat isolationist,” he told me. He had particular problems with Senator Edward Kennedy’s proposal to deny the President funding for a troop surge, and with an idea recently raised by the senior senator from Connecticut, Christopher Dodd, to cap the number of American soldiers in Iraq. Lieberman was not willing to say whether he would remain a Democrat if the Party cut off funding for the war. “That would be stunning to me,” he said. “And very hurtful. And I’d be deeply affected by it. Let’s put it that way.”

Slarti: " this is filibustering how, exactly?"

It was a cloture vote that failed; that is: a successful filibuster.

To expand. Under Senate parliamentary rules, debate continues until the group as a whole says it's over. To stop talking, it takes 60%. This rule stops a very slim majority from running roughshod over the rights of the minority. It's a delicate balance.

Both sides always wish they could dispense with niceties and just vote down the other side. There are a lot of built in cushions and hydraulics in the procedures.

If you take a good look at Roberts' Rules (which don't govern the Senate) you'll see the basic principles. The more your vote impinges on the rights of others to at least have their say, the higher the threshhold required.

A motion or amendment gets an up-or-down vote -- but any change in the rules of debate (stop debating, limit debate to 5 minutes per speaker, only allow each participant one speech per amendment, throw out a frivolous amendment, etc.) requires a 2/3 vote. Having sat on small boards, I think it's wise.

Under the Constitution, the Senate makes its own rules, and the rules continue from year to year (as it's a continuing body, unlike the House). I'm guessing that a 2/3 threshhold was considered unwise and unwieldy to choke off debate and force the question, but it still needed to be more than a simple majority. So 60% is now the threshhold....

I don't understand what system you would have us change to. Presumably, to object to a system, you have to be able to point to a better possible one, yes?

If you don’t get cloture you don’t get the vote, obviously the measure can not pass. In effect it takes 60% for something to have a chance to pass, yet only 41% to defeat it entirely.

So why not just save us all the theater (especially cloture debates) and require a minimum 60% super-majority for everything?

It was a cloture vote that failed; that is: a successful filibuster.

Odd. For some reason I had in my head that a filibuster was reading-from-the-phonebook kind of stuff.

So, what happens when a cloture vote fails? What does "failed" mean in this context? Does debate stop, or continue?

I know we covered some of this stuff in HS civics, but words appear to have gotten redefined since then.

"For some reason I had in my head that a filibuster was reading-from-the-phonebook kind of stuff."

You've seen Mr. Smith Goes To Washington too many times.

;-)

One way to prevent a vote used to be to insist on your right to speak to the Senate; as part of that, Senators would often read stuff, rather than try to extemporize. The need to do this was found to be an archaic requirement, and done away with by Senate Rule 22.

See more here.

Prior to 1917, there was no Senate mechanism for cloture (bringing a vote and closing debate, against the will of a Senator desiring to speak) at all. Then a rule allowing two-thirds of the Senate to end debate was created.

To quote Wikepedia:

[...] As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting. After a series of filibusters led by Southern Democrats in the 1960s over civil rights legislation, the Democrat-controlled Senate [5] in 1975 revised its cloture rule so that three-fifths of the Senators sworn (usually 60 senators) could limit debate. Changes to Senate rules still require two-thirds of Senators voting.
The House didn't restrict debate until 1842, incidentally.

By the way, that dreadful practice of filibustering judicial appointments?

According to a Historical Moments Essay on the U.S. Senate website, the Republican Party was the first to initiate a filibuster against a judicial nominee in 1968, forcing Democratic president Lyndon Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice.
Gotta hate the Democrats for coming up with this undemocratic stuff.

"Then a rule allowing two-thirds of the Senate to end debate was created."

I was unclear in distinguishing what changed in 1949; from 1917-49, it was two-thirds of those voting. The change in 1949 was to two-thirds of the entire Senate, a more difficult requirement (thus making it more difficult to pass civil rights legislation, which was made slightly easier again in 1959, when the Senate voted to return back to the old rule, primarily due to Lyndon Johnson).

Oh, and damnit, I should have mentioned: "the Democrat-controlled Senate [5] in 1975 revised its cloture rule so that three-fifths of the Senators sworn (usually 60 senators) could limit debate."

Damn the Democrats for twice making cloture easier!

Oh this thread brings out the cynic in me. Usually my examples of things that the minority party pretends is deeply important but which becomes trivial once they gain the majority are: gerrymandering, voter fraud, and the budget deficit (see especially Krugman's neck-breaking turn). I had almost forgotten about the filibuster.

By the way, that dreadful practice of filibustering judicial appointments?

Yeah, I knew about that.

I still can't divorce "filibuster" from an image of Strom Thurmond wearing a giant diaper, though.

Need...brillo...

It's not the use of the filibuster per se that bothers me. It's a bit undemocratic, but less so and in a more useful fashion than say, the Senate itself is undemocratic--and I like the idea of being able to force debate; I wish the filibuster were still used that way, as a stunt to get the press to pay attention to your argument because it was important.

What bothers me is the utter servility of the Republicans in Congress to this administration. And the fact that the Democrats didn't even consider filibustering the MCA or any number of other dreadful laws and appointments, but Warner will vote against cloture on the non-binding resolution he wrote, and which is wishy washy and toothless even by the standards of non binding resolutions.

Also, I don't see hil arguing that the filibuster is unconstitutional or that Reid should use the "nuclear option" to eliminate it. Could someone point to me of a single example of that or contain your smug cynicism about Democratic hypocrisy?

Sometimes I wonder if you actually read what I write, Katherine or just react to the existance of my name.

I said that minority parties think certain things are important so long as they are are in the minority and then drop them/complain about them when they aren't.

My comment isn't just about Democrats. You might have noticed that the Republicans had a fascinating flip-flop on the issue rather recently. It is about the concerns of minority vs. majority parties. Democrats have also had a rather dramatic turn-around on the appropriateness of filibustering. Both cases completely fit with my 'smug cynicism' but you attach it to the wrong noun.

As for rule changing, the Democrats don't have a secure majority (unless you think Lieberman can be counted on to turn the screws).

I'd argue that Democrats decision not to unleash the 'nuclear option' is an indication of their intelligence. Once the filibuster is completely abolished, it's gone, and the Democrats would be fools to kill it to pass a nonbinding resolution given that they'll likely need it again in the future.

Sebastian, I think Katherine was suggesting that you might supply some evidence for your contention that Democrats have flipped and now think the filibuster is a bad thing.

And presumably this paper-trail bill doesn't actually exist.

By the way, in a non-flip flop, I'll say again what I said at the time of the Court nomination filibuster flap. If the alleged purpose of the filibuster rule is to continue debate, we should make those who threaten a filibuster actually speak on the floor.

Make them read from telephone books if they can't think of anything to say. I want to see the TV attack ads with that footage in the next election!

you said: "things which the minority party pretends is deeply important but which becomes trivial once they gain the majority"

This would seem to refer to the Democrats, the minority party which recently gained the majority.

If the alleged purpose of the filibuster rule is to continue debate, we should make those who threaten a filibuster actually speak on the floor.

Actually, the real culprit to me is the "two-track" system (or whatever they call it), whereby the senate can continue with other business while some other bill is purportedly filibustered. If all senate business came to a halt, it would be used less frequently and likely taken more seriously when used by those in the majority.

and there's just no inconsistency whatsoever in opposing the nuclear option and arguing that the other party shouldn't filibuster a particular bill. No one has produced any evidence whatsoever of the Democratic of dicsussing or considering eliminating the filibuster. My main problem with the nuclear option was never that it is intrinsically better to have a 60% supermajority requirement than not...I think it probably is on balance but that's quite arguable. What I objected to were: (1) it was just utterly dishonest and stupid to argue there was anything unconstitutional or uniquely anti majoritarian about the judicial filibuster; (2) the last best checks on an administration that controlled all elected branches & that was in fact abusing its power with terrible consequences were: (a) the courts and (b) the filibuster in the Senate. Say Congress doesn't switch parties: you've got the possibility that they eliminate the legislative filibuster too, and that if Justice Stevens or Ginsburg has to retire, the administration can get their replacement confirmed with a simple majority and guarantee that habeas stays suspended. Last best checks on their power gone. I always said that the context mattered.

Maybe you're not talking specifically about me, but I don't know who you are talking about specifically.

Everyone's a procedural hypocrite to some extent, but you're making charges of bad faith and not supporting them.

"This would seem to refer to the Democrats, the minority party which recently gained the majority."

I'm pretty sure that in English, absent bad mind-reading, it refers to "the minority party" and "the minority party," generically.

I don't see any words to indicate otherwise; if you can point to any I'm missing that do, that would be helpful to indicate that you weren't mind-reading.

Of course, opposition to the filibuster was, in fact, generally the position held by many liberals, traditionally; it's only when in the minority that many more Democrats found value in the filibuster. Sebastian has some merit in that point, though semi-backwards.

Myself, I'm sort of in the middle, as is often; I think it's a tool that can be both for good and ill, and is more appropriately used in some places than others. I tend to lean against absolute views that it should be either utterly abolished, or never reconsidered.

This is not directed at Sebastian. Just for the record:

I did not say, and do not believe, that filibusters are somehow wrong.

I think they're a product of rules about whose wisdom I go back and forth, but generally support.

I do think that this is a particularly silly thing to filibuster, and that (as K. says) it just shows the servility of the GOP Senators (other than Collins and Coleman.) (Also: the servility of Lieberman, who doesn't even have the excuse of belonging to the right party.) I mean: it's one thing to do it for a piece of legislation you think is incredibly important and incredibly bad, or (for that matter) for a judge who is appointed for life and who, oh, wrote one of the torture memos or thinks that socialism triumphed in this country in 1937, or something.

But for a nonbinding resolution? Feh.

(I feel like Thomas More in 'A Man For All Seasons': "But for Wales?")

Hilzoy, "servility" seems fair for the "independent" Republicans who don't believe in the escalation but voted to support it anyway out of partisan considerations. But Lieberman actually is a true believer in the war, though he occasionally tries to hide it for political reasons. If he didn't really believe in it, he could have made reelection much easier for himself.

I think you're mischaracterizing the Republicans' position on filibusters, Hil. The initial clamor emanated from filibusters on judicial nominees, not filibusters in general. I don't recall Republican senators disavowing the use of filibusters as a general rule, and I don't recall Republican senators lecturing anyone as to their "evil". The issue back then was a change to a Senate rule to exempt judicial nominations from cloture, but it was tabled when the Gang of 14 was formed. End of story. There were plenty of complaints back then about Democrats' obtructionism, which is their prerogative to obstruct, and it is the GOP's prerogative to complain about. GOP senators may not have liked the stonewalling but they upheld and defended the Senate tradition. In the current matter, the Republicans can be validly accused of blocking Harry Reid's agenda, but not necessarily of debate. Because of this, I think NYT's title (and others) was misleading.

Also, I think you're unfairly belittling the minority's positions on the Hagel resolution. Yes, it is non-binding but its "mildness" is a matter of opinion. There are Republicans who are more interested in pursuing a resolution on principle than being a "rubber stamp" for Bush, McCain being the most prominent.

There are Republicans who are more interested in pursuing a resolution on principle than being a "rubber stamp" for Bush, McCain being the most prominent.

I wasn't aware that McCain had principles any more.

And sadly, that's not really snark.

"I wasn't aware that McCain had principles any more."

Any more? Was there strong evidence otherwise? He was one of the Keating Five. And his overreaction to that was a serious assault on the First Amendment. What principles?

The same principle that guides most politicians: what will make me look good?

Charles:

The initial clamor emanated from filibusters on judicial nominees, not filibusters in general. I don't recall Republican senators disavowing the use of filibusters as a general rule, and I don't recall Republican senators lecturing anyone as to their "evil".
Nice to see you.

Certainly I don't recall the word "evil" being used. Merely endless statements that the judicial filibuster, and anything that prevented "an up or down straight vote" was utterly wrong, unjust, and somehow objectively unfair -- but only when someone used it against a Republican President's nominees.

I think if you wanted to draw the distinction, it would be that a filibuster on nominees is a failure to advise and consent. But it is a stretch.

I never understood how the Republicans were drawing a distinction between judicial nominations and other sorts of nominations, since the constitutional basis is the same.

"I think if you wanted to draw the distinction, it would be that a filibuster on nominees is a failure to advise and consent. But it is a stretch."

Quite. The Senate gets to makes its own rules for its procedures, as specifically provided for in the Constitution. The Senate Rules are Constitutional, and no one (no non-kook, that is) has ever claimed otherwise, that I'm aware of. I'm unaware of any Republican Senator ever trying to bring a case to SCOTUS claiming that the judicial filibuster was un-Constitutional, which they presumably would have done if they believed that.

The initial clamor emanated from filibusters on judicial nominees, not filibusters in general.

This is a pointless distinction. What else did the Dems try to filibuster, and did the Repubs exhibit a different attitude if it did not involve a judicial nominee?

And I do not recall any Repub defending the general concept of the filibuster at the time. That would have been off message.

It's just Repub hypocrisy. Plus the Dems are not raising anything like the stink Repub's raised about the filibuster -- though that has more to do with the fact that for political purposes, supporting this filibuster is politically equivalent to supporting the war, and serves the same political purpose for Dems. Maybe they'll yell like Repubs at a later date, but right now the hypocrisy meter is pointing largely in one direction.
_______________

Sebastian:

Oh this thread brings out the cynic in me. Usually my examples of things that the minority party pretends is deeply important but which becomes trivial once they gain the majority are:...

This remark was not bipartisan, unless you also wrote it this way: Usually my examples of things that the majority party pretends were deeply important by which became trivial once they fall into the minority are...; which would be the Republican contention of the impropriety of filibusters.

There really has not been a Democratic reaction to this filibuster anything like the Republican position regarding past filibusters, and no explanation from Republicans on the shameless reversal of position.

I'm not conversant with the history of filibuster procedure, but it was my impression that once upon a time, the "procedure" was simply that a Senator would take the floor and start talking and keep talking and not stop talking. And, if s/he ran out of steam, s/he could 'defer' to a like-minded Senator, who then took up the filibuster. That would go on until someone deferred to someone who could ask for a vote of cloture.

Filibustering was, in other words, a kind of wildcat strike. Not announced in advance, not something subject to a minuet of asking for permission. If one or more Senators felt strongly enough about an issue to launch a filibuster, they just went and did it.

Can someone enlighten me about this?

The wikipedia page on "the nuclear option" is, I think, quite good on the ins and outs of this. Googling suggests that Frist specifically tried to carve it out for judicial nominees, but I'm not prepared to meekly believe that he meant what he was saying, just as I thought that some Dems were protesting a bit too much. At any rate, the Gang of 14's agreement seemed to underline that it was important to protect the advise and consent function. Ironically, it seems that the point stopping stronger resolutions is precisely the opposite.

"Can someone enlighten me about this?"

See my response to Slarti at 02:52 PM, and my two immediately following comments.

This is all sounding, to me, at least, like an argument among sausage gourmands regarding whether natural casing is better.

What principles?

The ones that everyone has been talking about since 1999.

SFAIK, it's not a filibuster of any resolution, but of the rule setting out which resolutions get debated. They'll get to it.

I'm not one who'd like to see the Senate shut down by filibusters. There's plenty of business to do on a variety of subjects. Eventually they'll come to 60 votes for something on this. Or not, and then there won't be a resolution.

Which, incidentally, is why I find Andrew's formulation... not disingenuous, really, but somewhat missing the point: McCain's appeal in the press is precisely predicated upon his perceived principles. Anything that can be done to shoot this misperception down is good -- as with any removal of the glamor politicans cast about themselves nowadays.

I'm unaware of any Republican Senator ever trying to bring a case to SCOTUS claiming that the judicial filibuster was un-Constitutional, which they presumably would have done if they believed that.

I wouldn't presume this. I'd presume instead that no Senator would think s/he could possibly get a court ruling on the point, whatever position s/he took.

"I'd presume instead that no Senator would think s/he could possibly get a court ruling on the point, whatever position s/he took."

What if the President brought the case?

I'm still not seeing it. The President sues the Senate because they haven't voted on a bill? Asking the court to order that a vote be taken, Senate rules notwithstanding? Political question, I think.

"Political question, I think."

Yes, which is why claiming that the filibuster is un-constitutional doesn't fly, isn't it?

I read Rule 22, and this paragraph brings up more questions:

Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks.

In other words, even after a vote of cloture, Senators can still debate whatever issue is on the floor. 100 hours of debate, in fact.

So, in other words, if the intent is to actually debate the issue, rather than simply prevent the Senate from voting on it, why does a cloture vote mean the debate is over?

It seems to me that if the Democrats want a debate on the war resolution(s) - one in which they note for the official record whatever points they have to make - they can still have it.

And if the Republicans want to keep their mouths shut - if Hagel has nothing to say about his own resolution - or if they want to spend their hours defending Bush's war, they can do that, too.

What am I missing here?

What Hilzoy quoted:

The Democratic leadership gave Republicans a choice: Allow all four versions to come to a vote, with a simple majority needed for passing any of them, or debate and vote on the Warner and McCain resolutions, with both needing 60 votes to pass.

McConnell wanted all four resolutions to meet a 60-vote threshold, for a simple reason: Both Democrats and Republicans think the only measure that could attract 60 votes is Gregg's, because Democrats would be concerned about the political ramifications of appearing to take action that might harm troops in battle."

CaseyL: you have to debate the issue currently before the Senate. That issue, yesterday, was not: the resolutions. It was: the rules governing debate on the resolutions. Alas.

I mean: I guess they could all have made speeches about the resolutions even though that wasn't the actual issue, just as they could have read the phone book, but they would never have been able to actually vote on them.

Gary, it's possible for have something to have no shot because of the political question doctrine and be right on the merits. In the case of a filibuster, I think that even a court heard the case on the merits, the argument that it's unconstitutional is an utter loser that you couldn't convince a judge is, but the fact that the court case won't succeed isn't *in itself* proof of that.

Nice to see you, too, Gary.

Certainly I don't recall the word "evil" being used.

I don't either, but there it is in the first sentence of this post.

And I do not recall any Repub defending the general concept of the filibuster at the time. That would have been off message.

A four-second Google search, second item down: "But Sen. Frist said the filibuster should not apply to judicial nominations." I take this to mean that the Senate Majority Leader supported filibusters except when judicial nominations are involved. If this piece is any indication, few senators have come out smelling like roses when it comes to filibusters, present posturing by both parties not excepted.

"This remark was not bipartisan, unless you also wrote it this way: Usually my examples of things that the majority party pretends were deeply important by which became trivial once they fall into the minority are...; which would be the Republican contention of the impropriety of filibusters."

Ummm, no. The Republican preoccupation with the evils of the gerrymander vanished as they gained majorities in the states. The Republican worry about voter fraud in the 1970s was minimized in the Reagan years and vanished completely when Gingrich took the House. The Republican preoccupation with the budget deficit vanished within a year of Gingrich taking the House.

The remark isn't bipartisan only if you fail to remember the times that the Republican Party moved from minority to majority.

I take this to mean that the Senate Majority Leader supported filibusters except when judicial nominations are involved.

That would, of course, be an obvious logical fallacy -- assuming that a statement about something specific implies something about the general situation either one way or the other. There is no reason to draw the conclusion that his concern was limited to just judicial nominations (and filibusters would othetrwise be OK) since the only filibuster at issue was one regarding judicial nominations.

It remains true that there was no expression of support for filibusters in general, nor was there an argument that purported to limit it to only judicial nominations.

We know very well how to do justifications ex negativo. If Gonzales can argue that the constitution doesn't grant habeas corpus (because only the taking away is mentioned), one can of course argue that something Frist says concerning one type of filibuster has no influence on the other types. My opinion on Frist&Co is that they just follow the "it's OK, if we do it but a scandal when it's done against us".
In order to make it less confusing: They will define the meaning of their words according to situation and without necessarily being consistent in it.

Since the main justification the Republicans used for opposing judicial filibusters was the "advice and consent" clause, what possible reason would there be to assume their objection would not apply equally to nonjudicial nominations, which are exactly the same constitutionally?

I don't either, but there it is in the first sentence of this post.

"evils" != "evil" (not even in plural). Perks of idiomatic language.

"Since the main justification the Republicans used for opposing judicial filibusters was the "advice and consent" clause, what possible reason would there be to assume their objection would not apply equally to nonjudicial nominations, which are exactly the same constitutionally?"

Under that justification it should be for all nominations.

Thanks for your corrective points, Charley and Katherine; I bow to you in this.

Charles:

Certainly I don't recall the word "evil" being used.

I don't either, but there it is in the first sentence of this post.

No. In point of fact, saying that there were people discussing certain "evils," and asserting that people called something "evil" are two different usages, with two different meanings, in English.

Adjectives and nouns, it turns out, do different things in a language, and context also mediates them.

Hilzoy was being metaphoric, and not making a literal claim. It's perfectly reasonable to suggest that the metaphor was overly strong, and what you said was more or less in that realm, but you can't legitimately strengthen the complaint into a claim that she asserted that there was a literal use of the word "evil" being uttered by Republicans, since she didn't make that claim. Just so we're clear.

w00t! I pwned Gary! r0x!

Is "!=" intelligible to nongeeks? (I should talk -- I've used "s///" in a comment here before.)

"Is '!=' intelligible to nongeeks?"

It's been common online parlance for over twenty years -- but there are always people who are new to nomenclature, and there are always people who have difficulty understanding the plainest English (in English-language forums, and who are native English speakers), regardless.

(Most people are, I say cynically, but from experience, without the training necessary to simply be able to read very closely; if they were, they could pass a common copyediting test -- but most people can't.) (Yes, yes, copyediting also involves some technicalities unnecessary for mere comprehension, but I'm not referring to that aspect; I'm merely saying a test is an approximation.)

I'm only a luser, Anarch, as everyone knows.

Yes, Gary, but those of us who were engaging in online conversations 20 years ago count as geeks for the purpose of the question even if you don't consider yourself one. Hell, anyone who knows what Usenet is counts as a geek.

Yeah, my only credential for being a computer geek, which is the particular fauna of geek in discussion (I'm other forms of geek, such as science fiction geek, comics geek, history geek, etc.) are: a) having always been around them since age 12;
b) taking three months of basic BASIC in my grand total of three months in college
c) getting and reading print-outs of SF-LOVERS every three months or so back in 1977, and for a few years, for my then one-of-the-top-five-collections of sf fanzines and historical material then in private hands;
d) doing my usual practice of exhaustively reading up on something important to me; in this case, on the history and culture of the online world when I finally was able to get online twenty or ten years later than almost everyone I knew: only in 1995.

(I visited some BBSes, when visiting friends, prior to that; basically, I couldn't afford a modem before that, or dial-up access, and that's what delayed me for so many years after everyone who hadn't been on Arpanet [which was a huge proportion of friends of mine] was on FidoNet; I missed the whole 110 and 300 baud era.)

Although my first years online were all via shell account -- but I really only learned a couple of handfuls of the most basic UNIX terms, and just enough to get around with PINE and tin, and a handful of other news and mail readers. Plenty of 8-year-olds knew and know more that that.

I make no pretenses of being a computer programer or admin, let alone a BOFH. The only kind of computer geek am I is faux.

I'm sure there are many good jargon terms for that, but none are springing to mind at the moment. See?

Come to think of it, I'm only a faux comics geek, too.

And really I'm damned out of date about science fiction, for the most part, at this point, as well.

I guess I'm just a decaying geek. What's the average half-life?

Hilzoy was being metaphoric, and not making a literal claim.

Indeed, Gary, but my real complaint was her mischaracterizing Republicans' objections to Democratic filibusters. The evil (or evils) of non-judicial filibusters weren't at issue by the GOP.

Just a stray thought. Given that this is a "relatively mild non-binding resolution that wouldn't have had the slightest concrete effect", I don't understand why Hil would just bash Republicans on this. The Reid-led Democrats now control the Senate agenda, and they are the ones who have massaging this resolution for weeks when there is certainly more important Senate business to had. Following her own logic, this should really be a pox-on-both-houses post, but instead the predictable partisan path was taken, capped with an Amen! for Schumer.

There is no reason to draw the conclusion that his concern was limited to just judicial nominations...

And there is no reason for you to draw conclusions beyond what Frist said, dm. There was only one rule change put before the Senate, nothing more, and it pertained to exempting judicial nominations from having to pass cloture. That is a simple fact. Exempting other acts from filibuster were never on the table, so to insinuate otherwise strikes me as a scare tactic. Don't take this as a defense of Frist, since he has a history of hypocrisy when it comes to this subject (see Paez).

There was only one rule change put before the Senate, nothing more, and it pertained to exempting judicial nominations from having to pass cloture.

I'm acknowledge the fact that Frist's rhetoric was that this was only about judicial nominees (as I noted above), but I believe that the rule change said nothing about exempting judicial nominations, it was a parliamentary tactic that could have been used for any vote that didn't have a constitutionally specified super-majority requirement.

I would not give Frist the benefit of doubt under any circumstances.

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