November 22, 2013

"One way or another, the filibuster of judicial nominees must end. The Senate must do what is good, what is right, what is reasonable and what is honorable."

"This filibuster is nothing less than a formula for tyranny by the minority," said the Senate Majority Leader Bill Frist, Republican of Tennessee, in a speech to the Federalist Society in November 2004.

In 2003, the Senate Rules Committee had had a plan to "gradually lower the threshold for filibusters against judicial nominees until a simple majority would allow a final vote."
Senator Trent Lott, the Mississippi Republican who is chairman of the Rules Committee, has been among the Republicans who have also suggested that the Republicans try to win a change by seeking a ruling from the chairman, a position that a Republican would hold, that filibusters against executive nominations are unconstitutional. A favorable ruling would require just a majority to uphold.

Some Republicans have been reluctant to try that maneuver. They call it the nuclear option, because it could come back to haunt them if they are in the minority. Democrats have also threatened to tie up the Senate in knots if they lose their right to filibuster in that manner.

"To implement it would make the last Congress look like a bipartisan tea party," Senator Charles E. Schumer, the New York Democrat who is on the Judiciary Committee, said. "For the sake of country and some degree of comity, I would hope and pray that the majority leader would not take away the Senate's time-honored, 200-year-old tradition."
Ha ha. Great old quotes. I especially love the expression "tea party."

Who knew, back then, how much things would flip in the next decade, including the connotations of "tea party"?

Here's what Schumer said yesterday when the Democrats, by simple majority vote, abolished the filibuster for presidential nominees: "The age-old rules of the Senate are being used to paralyze us.... The public is asking – is begging – us to act."

Here's another old article on the Democrats intense opposition to what they just did. This one is from 2005:
"This is the most radical notion we've heard...," Senator Reid said.... "...

Senator Charles E. Schumer... "The nuclear option is really like making the Senate a banana republic," he said.
And here's a NYT editorial in April 2003 recommending that Democrats filibuster judicial nominees:
Filibustering [Priscilla] Owen's confirmation would send the Bush administration two important messages: the president must stop packing the courts with ideologues, and he must show more respect for the Senate's role....
It is not by chance that the Senate is being asked to confirm someone with these views. The White House has culled the legal profession to find nominees with aggressive conservative agendas....

The filibuster is not a tool to be used lightly. But the Senate has been right to use it against the nomination of Miguel Estrada, who is hiding his views on legal issues. It should do the same to stop the once-rejected Judge Owen, and tell extreme conservatives in the Bush administration to stop trying to hijack the federal judiciary.
Obviously, today's Republicans take the same tone over Obama's nominees — they are extreme and aggressive in their liberal agendas.

Here's another NYT editorial, this one from 2005:
Republicans seem determined to change the rules so Democrats will no longer be able to stop judicial nominations with the threat of a filibuster. If they're acting out of frustration, it's understandable....

But the sense that there are certain rules that all must play by, whether to their advantage or not, is something that cannot be restored. Senators need only to look at the House to see what politics looks like when the only law is to win at any cost.

The Senate, of all places, should be sensitive to the fact that this large and diverse country has never believed in government by an unrestrained majority rule. Its composition is a repudiation of the very idea that the largest number of votes always wins out.....

A decade ago, this page expressed support for tactics that would have gone even further than the "nuclear option" in eliminating the power of the filibuster. 
That is, the NYT had favored eliminating the filibuster during the Clinton administration, but somehow, with Bush as President, they could see that they were wrong.
We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide.
And when that day comes, will the NYT see that seeing that they were wrong was itself wrong? Well, here's today's editorial in the NYT, "Democracy Returns to the Senate." Too funny.

65 comments:

Sam L. said...
This comment has been removed by the author.
Pettifogger said...

Your ox, my ox, same kind of gore. Neither party gets any points for standing on principle.

dbp said...

Both sides have said good and bad things about the filibuster but only one side has actually ended it.

Irene said...

Senator Obama, 2005.

Sam L. said...

Spoke too soon, I did. 'Twas Frist.
Read the article first, I didn't.
Sounded like Harry, though.

Brennan said...

I don't really like filibustering nominees because you don't like the nominee or you have concerns that the Senate has not received all the data it has requested on the nominee. However, most of these nominees seem like they should easily get to 60 votes to break a filibuster unless the party leaders are threatening their own members about loyalty and standing together.

The Senators need to think more about their State and less about their party.

traditionalguy said...

Filabuster is the word du jour. There is desperation at Obama Media Control. This story, any story at all, must be used to filibuster running ObamaCare death spiral news.

The NYT has a job to do.

RecChief said...

AS a conservative, I didn't support the threat in 2005, and sure don't now. Unfortunately, the public doesn't know the real obstructionist is Harry Reid.How many bills passed in the House have never been brought to the floor of the Senate? Petulant child.

Joseph Burns said...

A plague on both your houses!

RecChief said...

dbp is correct in his analysis

Joseph Burns said...

A plague on both your houses!

John Borell said...

Hoisted by his own petard

Matthew Sablan said...

The filibuster seems to me to be a good thing, and it seemed that way even when I didn't like how it was being used.

Kelly said...

dbp is right. I didn't pay any attention to the threat this time because I figured it was just a negotiating tactic. When will I learn the democrats aren't playing by the commonly held rules this time around?

I read somewhere that American politics has always been played on a field between two goal posts. Obama and his minions have taken the ball and run so far off the field no one is certain of what will happen next.

MnMark said...

The Republicans may have talked about getting rid of the filibuster - but the Democrats actually did it. So there's no moral equivalence between them. The Democrats, again, are the ones who throw comity and the traditions that sustain it out the window, as they did when they broke a 200 year tradition to block Judge Bork.

MadisonMan said...

I don't look for Consistency in what a politician says, and does, over the course of a career.

RecChief said...

MAdisonMan- so consistency has no meaning? Just look for a certain label that is expedient at a certain time?

garage mahal said...

as they did when they broke a 200 year tradition to block Judge Bork.

Bork got an up or down vote and failed on a 58-42 vote.

Next step should be to abolish the filibuster entirely. Better yet, abolish the Senate.

Birches said...

How can the NYT and any proud leftist keep a straight face after this?

hombre said...

Bottom line: The Evil Party did; The Stupid Party didn't.

Big surprise.

David said...

"What's sauce for the goose depends on whose ox is being gored."

--Hardy Cross Dillard

Levi Starks said...

I don't think it should be overlooked that the loosing effort to block this rule change was bipartisan. The effort to pass it was entirely partisan.

Hagar said...

good point.

Matthew Sablan said...

"Next step should be to abolish the filibuster entirely. Better yet, abolish the Senate."

-- Bohener would love that. Look at all the legislation the House could accomplish without the Senate.

AReasonableMan said...

OK garage mahal is back. Hopefully a few more left wingers will return.

The quality of the comments on this site has been appalling low since the purge. No one seems to challenge the logic or factual accuracy of any post as long as it goes along with Repub orthodoxy. Hopefully there will be a bit more rigor if the left wing representation creeps above a few percentage points.

Gahrie said...

The Senators need to think more about their State and less about their party.

I wonder if repealing the 17th Amendment would help this out?

Unknown said...

Eventually politics makes hypocrites of us all. It's just that the New York Times feels no shame in it.

cubanbob said...

If memory serve me right back then the Republican's talked of the 'nuclear' option in response to the Democrat's demand that the confirmations should be required to have 60 votes.

Reid and the Democrats did what they did, it is what it is. Lets see what happens in the next election, if the Republican's are really successful then they can use this to undo a lot of damage. Once you go nuclear, why hold back?

Gahrie said...

Better yet, abolish the Senate.

If we aren't going to repeal the 17th Amendment, we might as well. It should save a couple of billion dollars a year if nothing else.

jr565 said...

The compromise for not going nuclear was the gang of 12. Hopefully even the Gang of 12 now realize that such compromise is dead. So don't even put up the pretense. Concentrate onl getting the senate and then make sure you ram this rule change down dems throats over and over again.
I don't see why this couldn'tt be expanded to Supreme Court justices either. If you changed the rules once we could change any other rules we want, so long as we have the votes. And if we don't we can just change the rules so that we now do.
Also, every time we get a judge through we should salute HarrynReud and say "thank you for this senator Reid"

kimsch said...

Repealing the 17th should be done. Senators are supposed to represent their state government. Ben Nelson's Cornhusker deal on Obamacare was a Senator doing his job, working for his state.

States can still use popular election results to appoint their senators, repealing the 17th wouldn't change that, but it would give the state legislature a bit more control over the senators and maybe the senators would think a little more about how federal legislation will affect their states.

Changing the rules on a party line vote, breaking the rules to change them, just does more to show how the Democrat party wants to go the route of the dictator. This is the reason we aren't a pure democracy.

Would Republican Senators still retain their state holds? Could they, like the minority Dem Senators from Wisconsin, deprive Harry of a quorum?

jr565 said...

Cubanbob wrote:
If memory serve me right back then the Republican's talked of the 'nuclear' option in response to the Democrat's demand that the confirmations should be required to have 60 votes

but they didnt do it. And Reid himself put on quite a show on the floor about how invoking the nuclear option would be anti senate, and evil.
And of course, he then goes and does exactly that. Do all of his reservations no longer apply because he was the one who did it?

kimsch said...

Ah, the "Tilted Kilt" option is a non-starter in the US Senate. Quorum is 51. They'd only be able to do so if there were some Ds unavailable to come to Washington for a quorum call.

campy said...

Reid and the Democrats did what they did, it is what it is. Lets see what happens in the next election, if the Republican's are really successful then they can use this to undo a lot of damage.

Uh, no.

In the unlikely event the Gone Obsolete Party takes back the senate, the dems will simply change the rule back in a lame-duck session. Think the repubs would have the stones to brave the firestorm of vitriol that would be heaped on them to change it yet again? Hahahahaha.

damikesc said...

Next step should be to abolish the filibuster entirely. Better yet, abolish the Senate.

No beef with that. Let the House run the legislature. I bet you'll LOVE that.

Drago said...

ARM: "No one seems to challenge the logic or factual accuracy of any post as long as it goes along with Repub orthodoxy."

Again, complete and utter projection.

As always.

Bob Boyd said...

http://www.youtube.com/watch?v=0znNiN0lYAQ

Greg said...

garage mahal wrote "Bork got an up or down vote and failed on a 58-42 vote."

Yup, another time the Democrat majority covered itself in shame.

I favor up-or-down votes on judicial nominees, and I'm glad Bork got one, but that hearing was a travesty from start to finish.

Illuninati said...

I think that a simple majority should suffice for cabinet members. Judges are appointed for life and should be subject to more scrutiny. For a simple majority along party lines to appoint judges for life is potentially dangerous.

If we are going to make it so easy for someone to appoint judges then perhaps judges who have been appointed should have to face the public in an election like they do in New Mexico and some other states. Otherwise perhaps judges should be in office for 10 years and then be forced to return to the private sector.

clint said...

I love the flip-flopped over-the-top "principled" rhetoric on issues like this.

It's like candy.

garage mahal said...


Changing the rules on a party line vote, breaking the rules to change them, just does more to show how the Democrat party wants to go the route of the dictator. This is the reason we aren't a pure democracy.


If Republicans are so concerned with minority right they could have instituted the filibuster in the House a long time ago. Maybe they will now? hah, jk.

damikesc said...

If Republicans are so concerned with minority right they could have instituted the filibuster in the House a long time ago. Maybe they will now? hah, jk.

You can spin this all you want but the Democrats were discussing the VITAL importance of the filibuster. We'll ignore Obama as he seems genetically incapable of telling the truth, but even Reid, the pederast. He lied.

Republicans didn't kill the filibuster. Dems did.

Anonymous said...

Consider this conservative in the camp of, "Happy it's gone." We elected the President, he ought to have his picks in place, except for extreme circumstances.

Points I'd like to make.

1) Some would like to point out that when Republicans have a majority they want to do this and when Democrats have a majority they want to do this. If this is true, then why didn't the Republicans do it when they had a majority? Think about that.

2) Politicians are partisan. Surprise. When they are in power, they think the government is running as it should. When they are out of power, they think the country is headed in the wrong direction. Therefore, they see the things they are doing as good and right for the country. No reason to yell hypocrisy when they oppose something when out of power but support it when in power.

2b) However, the media isn't supposed to be partisan. Ha ha, right? Isn't the most important part of this whole story that final nail in the coffin of the New York Times and it's partisanship? Is it just a coincidence that their position always reflects that of the Democrats in power?

The Godfather said...

You can't get your innocence (I was going to say, virginity) back. Once a majority finds that it can gut a rule the requires a supermajority, you'd have to be a complete idiot to believe that you could ever again trust such a rule -- even Lindsey Graham wouldn't do that.

Gahrie said...

If Republicans are so concerned with minority right they could have instituted the filibuster in the House a long time ago. Maybe they will now? hah, jk.

It's almost like4 he's too stupid to know that the House and Senate were deliberately designed to be different and operate differently.

Michael McNeil said...

Next step should be to abolish the filibuster entirely.

Even if the filibuster in the Senate is abolished, the existence of the Senate is itself is a ‘filibuster’ with respect to the population-apportioned House — and it, of course, is constitutionally established, not via house rules voted by a mere majority of legislators.

Better yet, abolish the Senate.

The Founding Fathers thought you might think that way, and so they thoughtfully put a provision in at the end of the Constitution's Article V, to wit:

“The Congress, whenever two thirds of both Houses shall deem it necessary … shall propose Amendments to this Constitution … which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified … Providedthat no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Thus, in order to abolish the Senate or transform its state-wise apportionment into something else, unanimity among the several states is required.

Anonymous said...

It's all an exercise in record keeping. Keep track of all the harmful laws and appointments made via this route and when the worm turns repeal and impeach. Ta da!

Michael The Magnificent said...

As a conservative, I'm okay with this.

I'll also be okay with this rule remaining when the Republicans re-take control of the Senate.

Illuninati said...

I am glad there is one Democrat Senator who respects our democratic traditions even when it is in his short term interest to vote with the majority of his party.
"“Today we are once again moving down a destructive path,” Levin said on the Senate floor. “I support changing the rules to allow the president to get executive nominees in position … [but] pursuing the nuclear option removes an important check on majority overreach.”"
http://thehill.com/blogs/floor-action/senate/191097-levin-senate-is-moving-down-destructive-path

Levin seems to believe that cabinet members should be a simple majority vote while judges should be subject to more scrutiny. By lowering the standard for judges the fabric of our democracy has been seriously weakened. One would think that the danger of poorly vetted judges would be of concern to both Republicans and Democrats.

Skeptical Voter said...

Harry what goes around comes around--as the saying goes.

I'm saddened by all this. There's a reason for some anti-democratic (that's "democratic" as in Athenian democracy, aka mob rule) traditions in the Senate.

As a young pup taking Political Science 101 as a college freshman 52 years ago, we read Henry Mayo's introductory poli sci textbook. One principle stated in the book was that in a working democracy the rights and opinions of the minority are respected. That doesn't mean that the minority rules--but it does mean that the majority should not always ride roughshod over minority opinions and values.

Now "riding roughshod" and Dingy Harry Reid are two things that generally don't come naturally via free association. Reid is more the silent stealthy stab you in the back type if he gets a chance sort of politician. Spurs and chaps? Not so much.

And RecChief? I couldn't agree more with your description of little pinkie Reid as a petulant child.

Harold said...

"garage mahal said...
as they did when they broke a 200 year tradition to block Judge Bork.

Bork got an up or down vote and failed on a 58-42 vote."

On a mostly party line vote. The previously unbroken tradition was that QUALIFIED candidates would be confirmed. Bork was qualified. Whether you liked him or not, he was eminently qualified. If all the 5 Republicans who voted against his confimation had voted for, he would still have lost. Of those 5, one subsequently became a Democrat officially, another an Independent, officially. Independent for all practical purposes means Democrat. The Republicans subsequently played nice with Clintons appointments when they held the majority. I suspect they will never again play nice. Even John McCain should be capable of learning from this.

garage mahal said...

It's almost like4 he's too stupid to know that the House and Senate were deliberately designed to be different and operate differently.

Like4, not too stupid to know that the filibuster originated in the House, not the Senate.

Gahrie said...

Like4, not too stupid to know that the filibuster originated in the House, not the Senate

What does that have to do with your opinion that just because something was done in the Senate, it should now be done in the House?

Anonymous said...

Garage, Gahrie is patiently waiting for that amendment, that would give us 6,000 House members.

Anonymous said...

Oh yes and the repeal of the 19th. Right?

Gahrie said...

Garage, Gahrie is patiently waiting for that amendment, that would give us 6,000 House members.

Laugh away...they laughed at the guy who got the 27th Amendment passed 200 years later, and enough people take Article the First seriously that a case has been filed with the U.S. Supreme Court.

Gahrie said...

Yes I do want the three remaining Progressive Amendments (16th, 17th and 19th) repealed just like the fourth, the 18th Amendment was.

Unknowable said...

This 'historic' move by Reid may be more about Obamacare's IPAB (aka, death panel) than other nominees.

Obama now has free reign to pack the IPAB with whomever he wants with just 51 votes - and there is nothing the minority can do about it.

I expect the worst in terms of whom Obama will put on the IPAB and given it's power and isolation from checks and balances, it will become an abomination...

Real American said...

I'm looking forward to all of President Palin's judicial nominees sailing through confirmation of the Republican Senate.

jr565 said...

campy wrote:
In the unlikely event the Gone Obsolete Party takes back the senate, the dems will simply change the rule back in a lame-duck session. Think the repubs would have the stones to brave the firestorm of vitriol that would be heaped on them to change it yet again?


What would democrat objections be if they did? And why vitriol? It's already been established that the rules can be changed and were to serve democrats. So now it will be changed to serve republicans.

jr565 said...

Republicans if they do take the senate, and if the dems decide to change the rules back should change the rules back again, and then keep that rule for the exact same period of time that democrats changed the rule.

Drago said...

jr565 said: "Republicans if they do take the senate, and if the dems decide to change the rules back should change the rules back again, and then keep that rule for the exact same period of time that democrats changed the rule."

The appropriate retaliatory metric is not "time", but instead "impact".

mikee said...

Judges can be removed from the bench by impeachment the House, as I recall, if their trial in the Senate then convicts.

So in a few years we might have an amazing pendulum of a judiciary swinging from one pole of political ideology to the other, with mass appointments to the bench approved by whoever holds the Senate, along with mass impeachments to remove the previous majority party's appointments. Then the same when the Senate switches hands.

I wonder if the Judicial Branch will try to say that gamesmanship is somehow unconstitutional?

Rich Rostrom said...

Democrats turned judicial appointments into a partisan battleground over Bork. They initiated wholesale obstruction of appointments against Bush II.

Republicans begged the Democrats to compromise. They offered to take down the filibuster in stages. They agreed, finally, to the "Gang of 14" deal which seated a handful of Bush nominees - the rest being withdrawn.

When a Democrat gained the Presidency, he appoined exclusively partisan Democrats to judgeships. Nonetheless nearly all were routinely confirmed. Unlike Bush and the Republicans, the Democrats were not satisfied with that, nor interested in any compromise.

Thus Reid's invocation of the "nuclear option". I suppose it was inevitable. My only worry is how many appointments the Democrats ram through in the next year.


eric:2b) However, the media isn't supposed to be partisan.

No, the media should be partisan, as it was through most of our history. Very explicitly partisan. Newspapers had names like "Whig", "Democrat", "Republican". The masthead of the Chicago Times read "Loyal to the Democratic Party in victory or defeat."

Then everyone knows what's up. It's partisanship cloaked as impartiality that is killing us. Everyone who is on a side should wear a team jersey, not pretend to be an impartial referee. I'll even assert that many in the media fool themselves - they think that because they don't adopt an explicit party label, and occasionally criticize Democrats or liberals, that they really are impartial.

Harold said...

The size of the House came up. There are too few members, IMHO. (total population of the 50 states)/(population of the smallest state(Wyoming)) should be the number of representatives. 563626/308143815= 547 members. Numbers from wikipedia for 2010 census.