Commentary Magazine


Topic: filibusters

Hypocritical Dems Think They’ll Always Rule

Today, Majority Leader Harry Reid took the first steps toward altering the nature of the Senate. Reid and his Democratic caucus intend to alter the rules so as to prevent filibusters of cabinet appointees and nominees to the federal bench save for the U.S. Supreme Court. Having come this far it is assumed that Reid finally has amassed enough votes to ram through changes in the upper body’s time-honored rules and allow President Obama to pack the Court of Appeals with as many liberals as he likes. He claims they are acting in the name of civility and the need to keep the government working, but there should be no doubt that what is going on here is a hypocritical grab for power that should be stopped.

That was, after all, the opinion of the New York Times editorial page on March 6, 2005 when Senate Republicans first mooted what we now call the “nuclear option” in order to stop Democrats from filibustering President George W. Bush’s judicial nominees. Going back to that piece would make for instructive reading for self-righteous liberals today who claim that what Republicans have done in blocking liberal judicial nominees is unprecedented. This is what the Times had to say in response to Republican frustrations about the Democratic minority in the Senate using the rules to obstruct the appointment of conservatives to the bench:

The Republicans are claiming that 51 votes should be enough to win confirmation of the White House’s judicial nominees. This flies in the face of Senate history. Republicans and Democrats should tone down their rhetoric, then sit down and negotiate.

To block the nominees, the Democrats’ weapon of choice has been the filibuster, a time-honored Senate procedure that prevents a bare majority of senators from running roughshod. Republican leaders now claim that judicial nominees are entitled to an up-or-down vote. This is rank hypocrisy. When the tables were turned, Republicans filibustered President Bill Clinton’s choice for surgeon general, forcing him to choose another. And Bill Frist, the Senate majority leader, who now finds judicial filibusters so offensive, himself joined one against Richard Paez, a Clinton appeals court nominee.

The Senate does much of its work by unanimous consent, which keeps things moving along and prevents ordinary day-to-day business from drowning in procedural votes. But if Republicans change the filibuster rules, Democrats could respond by ignoring the tradition of unanimous consent and making it difficult if not impossible to get anything done. Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, has warned that “the Senate will be in turmoil and the Judiciary Committee will be hell.”

There is one way to avert a showdown. The White House should meet with Senate leaders of both parties and come up with a list of nominees who will not be filibustered. This means that Mr. Bush – like Presidents Bill Clinton, Ronald Reagan and George H. W. Bush before him – would agree to submit nominees from the broad mainstream of legal thought, with a commitment to judging cases, not promoting a political agenda.

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Today, Majority Leader Harry Reid took the first steps toward altering the nature of the Senate. Reid and his Democratic caucus intend to alter the rules so as to prevent filibusters of cabinet appointees and nominees to the federal bench save for the U.S. Supreme Court. Having come this far it is assumed that Reid finally has amassed enough votes to ram through changes in the upper body’s time-honored rules and allow President Obama to pack the Court of Appeals with as many liberals as he likes. He claims they are acting in the name of civility and the need to keep the government working, but there should be no doubt that what is going on here is a hypocritical grab for power that should be stopped.

That was, after all, the opinion of the New York Times editorial page on March 6, 2005 when Senate Republicans first mooted what we now call the “nuclear option” in order to stop Democrats from filibustering President George W. Bush’s judicial nominees. Going back to that piece would make for instructive reading for self-righteous liberals today who claim that what Republicans have done in blocking liberal judicial nominees is unprecedented. This is what the Times had to say in response to Republican frustrations about the Democratic minority in the Senate using the rules to obstruct the appointment of conservatives to the bench:

The Republicans are claiming that 51 votes should be enough to win confirmation of the White House’s judicial nominees. This flies in the face of Senate history. Republicans and Democrats should tone down their rhetoric, then sit down and negotiate.

To block the nominees, the Democrats’ weapon of choice has been the filibuster, a time-honored Senate procedure that prevents a bare majority of senators from running roughshod. Republican leaders now claim that judicial nominees are entitled to an up-or-down vote. This is rank hypocrisy. When the tables were turned, Republicans filibustered President Bill Clinton’s choice for surgeon general, forcing him to choose another. And Bill Frist, the Senate majority leader, who now finds judicial filibusters so offensive, himself joined one against Richard Paez, a Clinton appeals court nominee.

The Senate does much of its work by unanimous consent, which keeps things moving along and prevents ordinary day-to-day business from drowning in procedural votes. But if Republicans change the filibuster rules, Democrats could respond by ignoring the tradition of unanimous consent and making it difficult if not impossible to get anything done. Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, has warned that “the Senate will be in turmoil and the Judiciary Committee will be hell.”

There is one way to avert a showdown. The White House should meet with Senate leaders of both parties and come up with a list of nominees who will not be filibustered. This means that Mr. Bush – like Presidents Bill Clinton, Ronald Reagan and George H. W. Bush before him – would agree to submit nominees from the broad mainstream of legal thought, with a commitment to judging cases, not promoting a political agenda.

Of course, once Democrats won back the Senate in 2006, the Times changed its tune and hypocritically denounced filibusters as a threat to democracy. But that’s whole problem with Reid’s decision. As I wrote back in July, Reid’s plan was to stage a series of votes on liberal nominees that he knew could not inspire bipartisan support. That has given him the ability to rally his caucus behind the move to end filibusters on all but Supreme Court appointments. But, as the Times pointed out in 2005, what the Republicans are doing now is no different from what both parties have done in the past.

It is true that the use of the filibuster has expanded in recent decades and that has not always been for the good of the country. But the filibuster rules exist to prevent narrow Senate majorities from ramming through any legislation or appointment they like without listening to the opinions of the minority. Having to do that can be infuriating for presidents and Senate majorities but such consensus is, as perhaps President Obama should have learned from his health-care debacle, useful and even necessary for making government work effectively. The Founders didn’t create the Senate to rubber stamp the desires of presidents and majorities but to act as a check on their impulses. If President Obama and Reid want to get more judges confirmed, they can do as their predecessors have done and try to work with the other party rather than just maneuver to impose their ideological agenda on the country. Despite the apocalyptic rhetoric of Democrats, Republicans have allowed more than 200 of the president’s judicial nominees to be confirmed. That’s why the fight Reid has staged on the filibuster is a ruse designed to justify a naked putsch for total power.

Democrats should pull back from the brink for the same reason both parties have refrained from going nuclear: no majority lasts forever. A few years ago the GOP was inveighing against filibusters and Democrats spoke up for the rights of the minority. Today, the tables are turned. But though the president and Reid are acting as if their party will rule forever, it won’t. As Chris Cilizza points out in the Washington Post today, a lot of the current members of the Senate weren’t there in 2006, the last time Democrats were in the minority. But whether it is in 2015 or 2017 or another year, Republicans will win back the Senate some day. At that point, Democrats will once again discover the virtues of the filibuster. But, if Reid’s rule changes go through, they will rue the day they blew up the Senate.

Rather than making the government work better, as the Times predicted back in 2005, the nuclear option will only make political battles in Washington nastier and more divisive. Power grabs may work in the short run but those who try such gambits usually learn that the American political system encourages moderation and checks and balances. As such, Reid may get a taste of his own medicine sooner rather than later.

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Dems’ Tired Filibuster Hypocrisy

After threatening to do so ever since they took back control of the Senate in 2008, Democrats may finally get around to trying to limit the right to filibuster this month. As the New York Times reports, Senate Majority Leader Harry Reid thinks he’s finally got a clear path to hamstringing Republican attempts to use the rules to prevent the president from getting more of his nominees for various offices confirmed. But though they—and their cheerleaders in the mainstream media—believe the time is right to start rolling back filibusters, it is far from certain that even this limited proposal can pass.

Reid appears to be planning to stage some confirmation fights in which he knows he doesn’t have 60 votes for cloture. But this carefully crafted confrontation won’t really be about the kinds of filibusters that generally get the most attention. Democrats are proposing that the new rule will only affect stalls of appointments to federal agencies and cabinet posts but leave in place procedures which require at least 60 votes to end debate on judicial appointments as well as legislation. That will allow Democrats to argue that the only thing they are asking is for Republicans to allow the government to function and to let the president have, as tradition allows, his choice on who should lead Cabinet departments and agencies. But the notion that the motivation for all this is a particularly unique or unprecedented series of actions by Senate Republicans to obstruct the government doesn’t wash. Both the specific nominations that Reid will use to leverage the filibuster limits and the recent history of Democrat stalls undermine the majority’s credibility. Getting even 51 Democrats to buy into making historic alterations in the Senate rules on these flimsy grounds may be a heavier lift than Reid and President Obama think.

Though this all may be a gigantic Democratic bluff, Senate Minority Leader Mitch McConnell has noted during his frequent speeches on the issue, “Majorities are fleeting, but changes to the rules are not. And breaking the rules to change the rules would fundamentally change this Senate.”

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After threatening to do so ever since they took back control of the Senate in 2008, Democrats may finally get around to trying to limit the right to filibuster this month. As the New York Times reports, Senate Majority Leader Harry Reid thinks he’s finally got a clear path to hamstringing Republican attempts to use the rules to prevent the president from getting more of his nominees for various offices confirmed. But though they—and their cheerleaders in the mainstream media—believe the time is right to start rolling back filibusters, it is far from certain that even this limited proposal can pass.

Reid appears to be planning to stage some confirmation fights in which he knows he doesn’t have 60 votes for cloture. But this carefully crafted confrontation won’t really be about the kinds of filibusters that generally get the most attention. Democrats are proposing that the new rule will only affect stalls of appointments to federal agencies and cabinet posts but leave in place procedures which require at least 60 votes to end debate on judicial appointments as well as legislation. That will allow Democrats to argue that the only thing they are asking is for Republicans to allow the government to function and to let the president have, as tradition allows, his choice on who should lead Cabinet departments and agencies. But the notion that the motivation for all this is a particularly unique or unprecedented series of actions by Senate Republicans to obstruct the government doesn’t wash. Both the specific nominations that Reid will use to leverage the filibuster limits and the recent history of Democrat stalls undermine the majority’s credibility. Getting even 51 Democrats to buy into making historic alterations in the Senate rules on these flimsy grounds may be a heavier lift than Reid and President Obama think.

Though this all may be a gigantic Democratic bluff, Senate Minority Leader Mitch McConnell has noted during his frequent speeches on the issue, “Majorities are fleeting, but changes to the rules are not. And breaking the rules to change the rules would fundamentally change this Senate.”

Though thanks to Frank Capra’s classic Mr. Smith Goes to Washington they are enshrined in American popular culture, filibusters are not mentioned in the Constitution. The Senate can change its rules allowing them any time it wants as the advent of cloture rules requiring 60 votes to stop debate showed.

But the reason why filibusters survive in their current form is the stark knowledge that both parties know they are the only thing that allows minorities in the upper body to have a say in legislation. Without them, the Senate could function like the British House of Commons where a narrow majority can always shove any bill down the country’s throat. The filibuster is important because it is the perfect tool for an institution created by the Constitution specifically to act as a check on majority opinion and impulses.

Critics of the filibuster say it is a fundamentally undemocratic practice and they’re right about that. But the Senate is itself a body created to thwart democracy with small states getting a disproportionate voice in the nation’s affairs and six-year terms meant to stand in contrast to the more frequent election cycles that, at least in theory, keep the membership of the House of Representatives closer to public opinion.

But the main point here is that it was only a few years ago that Senate Republicans were in charge and it was the Democrats who used filibusters to stop George W. Bush’s nominations to the judiciary and even cabinet posts. As I noted in 2009, the New York Times endorsed filibusters as an essential tool that enabled liberals to thwart the GOP, but they changed their minds as soon as Democrats took back the Senate. Since then, Republicans have done their share of obstructionism, but it has been no worse than the Democratic mayhem wreaked on Bush administration plans. If Senate Democrats and the mainstream liberal media are up in arms about the use of the filibuster now, it is only because the dysfunction of Congress has become their main talking point about GOP beastliness, not because what Republicans are doing is any worse—or better—than what President Obama and his party were doing prior to his taking office.

Even more damning is the fact that the specific nominations that Reid has chosen to make his stand over are not typically anodyne confirmations. All of them are controversial not so much because of the individual nominees but because of the manner in which they were appointed or because the agency posts they seek to fill are in and of themselves points of partisan contention.

In particular, Republicans are on very firm ground in seeking to use the rules to stop President Obama’s nominations to the National Labor Relations Board. Four of Obama’s nominees to the NLRB are already serving since the president snuck them into their posts as recess appointments, something that was rightly opposed by the GOP as a power grab. The Supreme Court has accepted the case for review and may well rule that they should never have been appointed in this manner in the first place. The Senate should wait until that case is decided before going any further.

The GOP also has a strong case in opposing other nominations that Reid is seeking to use as a litmus test for the future of the filibuster. Virtually the entire Republican caucus has vowed not to confirm any appointment to the new Consumer Financial Protection Bureau until it is reformed in order to create a bipartisan leadership for it rather than having it led by a single political appointee.

While Democrats are eager to get these agencies functioning in a manner that will further their political agenda, these appointments are poor examples of the alleged plague of Republican-inspired dysfunction.

But above all, the key issue here is hypocrisy. As even the New York Times noted today, it was Senator Barack Obama who said the following about GOP threats of changes in the filibuster rules:

If they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.

The president was right about this issue then, even if he and his followers have attempted to throw that statement and the reasoning behind down the proverbial memory hole. One suspects that more than a few Democrats mindful of the fact that they might find themselves in the minority in 2015 or 2017 will remember that and prevent Reid from changing the rules.

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Can Obama Pack the Courts With Liberals?

Every president’s most lasting legacy tends to be the judges they appoint to the federal courts. That’s why liberals are hoping that President Obama’s re-election will result in a wave of judicial nominations that will alter the character not just of the Supreme Court, but also of crucial appellate benches, such as that serving the District of Columbia. As the New York Times reports this morning, the confirmation of one of Obama’s nominees to be the eighth member of the United States Court of Appeals for DC has only whetted the appetites of his liberal base. With three vacancies still available to be filled, that gives the president the chance to not only significantly change a court that has in recent years acted as a check on the administration’s agenda. But that ambition is running head on into the determination of the Senate’s Republican minority to use the filibuster rules to prevent a radical shift to the left in the judiciary.

Considering that it was the Democrats who began this game of filibustering nominees to DC bench in 2001 when they frustrated George W. Bush’s nomination of Miguel Estrada, the cries of GOP obstructionism from the left are more than a little hypocritical. But according to the Times, the White House plans to try to shove the three down the Senate’s throat simultaneously so as to create a backlash against the Republicans. They are betting that GOP Leader Mitch McConnell can be influenced into backing down on this confirmation fight by making him believe the defeat of three liberals will lead not just to public anger but a push to change the rules of the Senate that would effectively neuter the rights of the minority. But while Democrats like Harry Reid and Chuck Schumer are speaking as if they have McConnell over a barrel, the GOP leader must know this is a transparent bluff.

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Every president’s most lasting legacy tends to be the judges they appoint to the federal courts. That’s why liberals are hoping that President Obama’s re-election will result in a wave of judicial nominations that will alter the character not just of the Supreme Court, but also of crucial appellate benches, such as that serving the District of Columbia. As the New York Times reports this morning, the confirmation of one of Obama’s nominees to be the eighth member of the United States Court of Appeals for DC has only whetted the appetites of his liberal base. With three vacancies still available to be filled, that gives the president the chance to not only significantly change a court that has in recent years acted as a check on the administration’s agenda. But that ambition is running head on into the determination of the Senate’s Republican minority to use the filibuster rules to prevent a radical shift to the left in the judiciary.

Considering that it was the Democrats who began this game of filibustering nominees to DC bench in 2001 when they frustrated George W. Bush’s nomination of Miguel Estrada, the cries of GOP obstructionism from the left are more than a little hypocritical. But according to the Times, the White House plans to try to shove the three down the Senate’s throat simultaneously so as to create a backlash against the Republicans. They are betting that GOP Leader Mitch McConnell can be influenced into backing down on this confirmation fight by making him believe the defeat of three liberals will lead not just to public anger but a push to change the rules of the Senate that would effectively neuter the rights of the minority. But while Democrats like Harry Reid and Chuck Schumer are speaking as if they have McConnell over a barrel, the GOP leader must know this is a transparent bluff.

The Democrats have been pushing the theme that Republicans are obstructing the president’s agenda ever since the 2010 elections with mixed success. While many assume that what the people want is for Congress to “get things done,” Americans have shown they are actually quite comfortable with divided government since when one party controls both ends of Pennsylvania Avenue, the result is not very popular, as the recent polls that show a majority continues to oppose ObamaCare — passed in 2010 during a period of total Democratic dominance — testifies.

However, the Republicans proposal on the future of the DC panel is probably just as doomed as the nominations of any of the liberals Obama might nominate. They want to eliminate the three vacancies on the DC panel — which already has eight members split between the two parties as well as six senior judges that are available to hear cases — and transfer them to other circuits. That makes sense since the judiciary does seem to be heavily weighted toward the capital but the problem there is that anyone who wants to change the rules about court nominations is inevitably going to face the charge of court packing.

But that applies just as easily to Democrats who are threatening the GOP with the “nuclear option” of altering the rules that permit filibusters.

It is true that the practice has escalated from isolated cases to a situation where almost everything that requires Senate passage requires a 60-vote supermajority in order to prevent a filibuster. That is regrettable but in a Senate where neither side trusts the other to give each other’s proposals a fair hearing, it’s inevitable. And as much as the need for cloture on all legislation is a burden on the government, there is an understanding in both parties that lifetime judicial nominations are the sort of thing where broad consensus is to be preferred over narrow partisan majorities.

Nor is there much reason to take the Democrats threats on this matter too seriously. The recent confirmation of Sri Sririvasan to the appellate court shows the Republicans are prepared to play ball and let enough Democratic nominees through to keep the system working. Indeed, they can argue that Obama’s judges are being confirmed more quickly than were George W. Bush’s picks when the Democrats controlled the Senate.

It’s also true that Democrats understand that the filibuster is a tool that both sides can employ. If 2014 turns out to be a big GOP year and with so many seats to protect, it is entirely possible that it will be Reid who will be doing the filibustering in 2014 rather than McConnell, making it unlikely that the Dems will ever change the rules.

In the meantime, Senate Republicans have every reason to use their power to slow down Obama’s attempt to tilt the courts to the left. Rather than seeking a confrontation that he and his party are bound to lose, President Obama would do well to consider candidates for the courts that can attract moderate and conservative support rather than ideological liberals. Nobody is fooled by the Democrats’ bluffing.

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