Wave Maker: Partisan Politics and the Filibuster

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Wednesday, March 16, 2005

Partisan Politics and the Filibuster

In one more stark and dramatic demonstration of just how bad the partisan bickering in Washington has become, the Republican majority in the Senate is about to turn to ((gasp)) a rules change to prevent a minority of Democratic Senators from being able to block a vote on ten Bush nominees to the federal courts. You'd think they were proposing to outlaw the American Flag, the way the Democrats are hollering. The "nuclear option," it is now called.

Originally calling for a 2/3 vote for "cloture," the Rule was changed once before in 1975 to 3/5. At the time, Senate Majority Leader Mike Mansfield (D. Montana) proclaimed, "We cannot allow a minority" of the senators "to grab the Senate by the throat and hold it there." Voting for the Rule change at the time were Senators Leahy, Kennedy, Byrd, and Biden.

Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is "plainly unconstitutional."

Plenty has been written on the subject already. There seems to be no serious quarreling with the notion that the rule change only requires a majority vote, and that requiring anything more than that would be unconstitutional. Professor Ronald Rotunda of George Mason University Law School points out that even Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is "plainly unconstitutional."

But it is important to understand that the rule change from 67 to 60 was made as a political compromise, and one that has lasted for a generation at that.

I think Majority Leader Bill Frist's own words put the gravity of this situation into perspective:

Frist said in a speech to the Federalist Society recently:

"This is unprecedented in over 200 years of Senate history. Never before has a minority blocked a judicial nominee that has majority support for an up-or-down vote on the Senate floor. Never.

Now, the minority says the filibuster is their only choice, because the majority controls both the White House and the Senate. But that fails the test of history. The same party controlled the White House and the Senate for 70 percent of the 20th century. No minority filibustered judicial nominees then.

Howard Baker's Republican minority didn't filibuster Democrat Jimmy Carter's nominees. Robert Byrd's Democrat minority didn't filibuster Republican Ronald Reagan's nominees. Bob Dole's Republican minority didn't filibuster Democrat Bill Clinton's nominees. There's nothing specific in the formal rules of the Senate that restrained those minorities from filibustering. They simply used self-restraint. Those senators didn't filibuster, because it wasn't something senators did. They understood the Senate's role in the appointments process. And they heeded the intent and deferred to the greater wisdom of the framers of the Constitution."

Self-restraint.

So why do the Democrats not want to restrain themselves in these cases?

Because, for the most part, they object to the nominee's political views or affiliations.

Not qualifications, not temperament, not any of the other aspect of a federal judicial nominee you might otherwise care about. But these are "lifetime appointments" ((gasp))!!!

Well my friends, examine the complete body of federal case law over the last several generations, and I think you find that these "lifetime appointments" are not a foreboding of certain doom.

The majority party in Congress is certain to change (eventually), the White House will not be held by the current party forever, and all in all, things seem to work themselves out -- provided that members of Congress cooperate, and do their job.

If the Republicans exercise their "nuclear option," what's sauce for the goose is sauce for the gander. The Senate has a resilient institutional memory. "People remember." And if the body of federal case law precedent is so radically shifted to the right by these so-called radical right activist judges, then it will be the privilege of the controlling Democrats at the time to shove a bunch of radical liberals down the throats of their opponents.

But we're talking about ten judges here in a system of thousands. They're well qualified, experienced, and in some cases even supported by Democratic members themselves.

But the majority must remember the same history that Frist recalled to the Federalist Society. The previous rule change was a compromise.

I know that's not in vogue this season, but it had better gain some traction or "nuclear option" is going to become the catch phrase for a lot of other issues.

(Thanks to Outside the Beltway for pointing me to some good source material)

Posted by: Wave Maker / 1:08 PM/ |