Sarah Binder asks all the right questions in her piece on the prospect for filibuster reform. Can the Democrats go nuclear on executive branch nominees but not judicial ones? Does the Republicans’ argument that the DC Circuit is just fine with three vacancies change the game so that the Dems no longer care about blowback under a GOP presidency? In other words, while it’s nice to have a veto on lifetime appointments, can the Dems tolerate a precedent that judges can be denied confirmation votes because the Republicans say we don’t need any confirmed judges?
The Dems probably have the votes to kill the filibuster for executive nominees, but until recently they did not have the votes to kill the filibuster for judicial nominees. The ludicrousness of the GOP’s argument on the DC Circuit could change that.
The argument I hear in progressive circles is that it is a mistake to think that the Republicans will respect the filibuster (for anything) the next time they are in change because the Republican Party has fundamentally changed. I think that this is probably true, and that a preemptive move that would smooth the way to filling all the judicial vacancies is therefore warranted.
But I don’t think it would be a healthy reform because without the restraint of needing some Democratic votes in the Senate, the kinds of judges the Republicans would appoint will be very frightening.
I find this whole debate quite depressing and vaguely terrifying, because it just drives home how broken our politics have become. Everywhere I look, our choices are between bad and cataclysmic.
Agreed with everything you said. So why not preempt them there as well, and start ramming home some Hugo Blacks and Louis Brandeis?
Obama is president until 2016. He should, at the end of his two terms, have about 1/4-1/3 of all judges of federal courts seated. At this point, we will have no where near that number.
I further see no prospect for additionally confirmed judges.
So, if the Democrats want a Democratic tilt to the court, which is our due as the OUTRIGHT winner (+50%) of two elections (a result which has not happened in 30+ years), we must go nuclear. This is not an optional choice. We must do it, and the consequences will take care of themselves.
+100
The kinds of judges the next Repub prez and Repub senate will appoint will be frightening whatever the Dems do today. They sure as hell aren’t going to let the filibuster stop them, to think they will is comic. Repubs are now irreversibly an American Nazi party, committed to the (white) Volk and corporate plutocrats. Nothing whatever is going to change them into a rational party that can be trusted with power, including electing the Fatman. Nothing. They are in their final monstrous form, and have achieved their final horrendous evolution.
The filibuster (of all things) is not going to save the nation from this new Nazi party. We can either get some sane (even lib’rul!) judges now, or never.
Thus, DataG has nailed the only possible analysis, and there is no way around his conclusion. If Harry’s Dems don’t have the stomach and spine to respond this outrageous “conservative” bullying and shit-smearing, they will be the ones going the way of the Whigs…your move, Mr. Boxing Commissioner…
Yes. And in a Republican Senate, the filibuster would only survive until the Democrats tried to use it for anything that matters.
Yup. We’ve already seen that they can’t be negotiated with. It may have been frustrating to watch, but this was actually a gift from Obama — that he wasted so much capital trying to do the right thing.
Now we are in a “Do it to them before they do it to us” mode. Obama can’t join us in that, but he can’t argue with it either, as his way didn’t work.
All this is sliding down the slope towards irreconcilable differences, between two Americas sharing almost no values.
Just thinking out loud here, but I sometimes get the feeling that the lack of enthusiasm a lot of Democrats and even independents have for senate Democrats is not because the latter are too liberal, but because they don’t fight hard enough.
The filibuster situation is the classic example. I think a lot of people expected that Reid would have dealt with it earlier. I’m not familiar with the details, but I suppose at least part of the reason is that he couldn’t get enough Democratic senators to vote for it. And why?
So although going nuclear may be both possible and practically necessity at this time, it’s worth asking how the electorate is likely to react to it. Having their senators actually being able to do stuff that the majority of Americans think is good for the country, and all that.
My guess is that it would be very popular. And the Republicans are just about as unpopular as they’ve ever been. This country would really benefit from the Republicans being made irrelevant.
I know the decision has to be made according to the imperatives of the next 3 years, but moving the Democratic agenda might just make it less likely that the GOP would regain control of the senate any time soon, and by the time they do (if they still exist at all) they might well be a very different party.
Good question. I wouldn’t underestimate the power of tradition and experience. The filibuster is all that these senators (and the ones dating back to the early 19th century) know. And for the older senators, it was both a rarely used tool, and one that was occasionally useful to them.
It’s only since Jan. 2009 that Republicans have made the unprecedented shift to filibustering everything. The combination of that finally sinking in over the past four years, and the defeat/retirement of several of much of the “old guard” in the Democratic caucus is what makes it possible to think of getting 51 votes to eliminate or drastically restrict the filibuster.
…it’s worth asking how the electorate is likely to react to it.
My sense is that they’ve been betting sympathy would tilt away from whichever side changes the rule, especially if done in a “nuclear” fashion. That, plus the limited benefit of ending the filibuster while the GOP runs the House makes a legitimate argument against a rules change, although for my two bits I would have ended it years ago.
As far as judicial and other appointments go, there really is no precedent or excuse for the lack of cooperation this president has gotten from the opposition. One way or another, this situation has got to be resolved before 2016, or it’s our own fault.
“My sense is that they’ve been betting sympathy would tilt away from whichever side changes the rule, especially if done in a “nuclear” fashion.”
I think that must be it, but the Republicans in congress have such a bad reputation by now with the public that the dynamics may well have changed.
http://firstread.nbcnews.com/_news/2013/10/10/20903624-nbcwsj-poll-shutdown-debate-damages-gop
As I see it, the Republicans have raised the stakes of Presidential elections, and Democrats need to accept this — and make sure we keep winning the Presidency as long as the GOP remains extreme.
If the GOP get their way, if they ever win every branch of government again, democracy in the US will be two wolves and a sheep voting on what to have for dinner.
Adding to this: when Democrats backed down from the “nuclear option” in 2006 it revealed that the Democratic caucus ultimately wouldn’t filibuster judicial nominations. (So what’s the advantage to Democrats of keeping it around?)
To paraphrase Donald Rumsfeld, “You go to war against the Republicans that you have, not the ones you might want or wish to have at a later time.”
I think that holding out hope that there are “reasonable Republicans” who are going to rise up and take back the party is, at best, very wishful thinking. You almost have to make the gamble that the momentum of crazy that is driving the GOP is past the fail-safe point, and that the cleaving of the party that seems to be in the cards is going to happen at some point down the road. When that happens, they will no longer be a force that has to be reckoned with, as the numbers on both sides of their party will be so diluted as to be irrelevant to the actual numbers needed to govern.
Would this be a healthy reform? Who knows? But when there are signs that the process that has sustained us for the last 237 years might well be in its death throes, is it really foolish to try anything that might increase the likelihood of survival? As it stands now, almost everyone with a brain agrees that the current situation is simply not sustainable. When the patient is dying, you do whatever the hell you have to do. Sometimes you have to break a few ribs to get a dying human to, once again, breath on his own. I think that point is now, irrefutably, on our horizon.
Exactly. Indeed, Obama and Reid and senate Dems could even start pointing out that it is REPUB abuse of the filibuster that has necessitated the rule change; that REPUBS are ones wrecking our age-old traditions with their unprecedented obstruction and extremism; that REPUBS are the ones abusing senate minority “rights”; that REPUBS are the ones destroying the Olde Tyme senate with their baseless obstruction. They could even start hectoring the corporate media and Beltway courtier “journalists”.
They are supposed to be expert arguers and debaters, after all. They don’t have to passively wait for the Repub Talking Points Blizzard before opening their mouths. Jeebus.
It just does not seem that it would be so difficult to begin to make an aggressive case to the American people that this is simply the only way left for them to have a semblance of the government that they claim to want from the results of the last two elections. A government that can actually get things done which benefit them.
There is no doubt that the corporate media would frame it as the ultimate assault on the historic traditions of our governing processes. But what we are seeing today, with the total intransigence and outright gleeful obstruction by the far right, is simply not the way the vast majority of Americans think things should be.
It would just be a reform to the way things used to be. Filibustering judges was extremely rare prior to W. When W started appointing basket cases the Dems filibustered; but in the end only 5 were stopped and they were mostly (entirely? need to check) replaced by slightly more qualified nutcases.
It’s always been the case, until recently, that a party with control of the Presidency and the Senate could put anybody it wanted into the judiciary. It’s not reasonable to expect that to change, and it’s only the outrageous gullibility of the Dems that has allowed the Republicans to change things.
The GOP is damaged right now. It’s a perfect time for the Democrats to gather their courage, ignore the Republicans as much as possible, and actually move the country to the left. It will be up to the voters to decide if they like the results. But at least the American people will actually know what the difference between the parties is.
We could reduce the ridiculous overuse of the filibuster if we simply brought back the talking filibuster.
I think this is a bit of a misnomer or misunderstanding that seems to have a lot of currency.
I’ve written quite a lot about what a filibuster is and is not, and I don’t want to do it all over again here, but..
The Senate operates by unanimous consent, which means that any senator can stop business simply by saying ‘no.’
However, the process for overcoming the lack of unanimous consent is explained in Rule 22 of the Senate Rules.
There never was any requirement that senators speak in order to register their lack of consent. And, under Rule 22, the invocation of cloture is a privileged motion, which means that you can actually shut a senator up and make the motion. So, talking alone cannot stop a cloture vote.
If makes more sense to talk about the talking filibuster in contrast to the anonymous hold. The anonymous hold is when the Minority Leader informs the Majority Leader that some unidentified member of his caucus is going to object to some future anticipated motion. This is a way of holding up business without anyone seeing your fingerprints.
In any case, the problem with the filibuster isn’t that senators don’t have to talk anymore. The problem is that the Republicans have turned the filibuster into a routine requirement that 60 votes be attained for anything to pass in the Senate. It’s a problem with the party more than with the method.
I see, I think, thanks. I guess I have to extend my understanding of senate procedure beyond what I learned from watching Mr Smith Goes to Washington.
Look at it this way.
What normally happens with a bill or nomination is that there is a “consent agreement” that is worked out between the two party leaders. This involves how much time there will be to debate, as well as which amendments will be considered, if applicable. Once the agreement is made, then debate time is limited and there are also limits to how much each individual senator can use. So, the filibuster isn’t possible once a consent agreement is made.
But a consent agreement, by definition, cannot come into play unless all 100 senators agree to it. So, denying your consent is the way you stop a bill, not through talking.
Now, the majority leader can try to push a bill through without unanimous consent, but that requires him to file for cloture, which is time consuming and requires 60 votes. But, again, the time for post-cloture debate is limited to 30 hours, so it cannot be delayed by talking.
The reason that Ted Cruz was able to talk for so long the other day is because of another rule. In the absence of a consent agreement, a senator can talk for as long as he wants and can only be forced to cede for privileged motions. Cloture is a privileged motion, so Cruz wasn’t delaying anything by talking. I suppose the Senate could have used the time to do something else, but the vote he was protesting went off at the scheduled time.
The Mr. Smith filibuster wasn’t explained procedurally, as far as I remember, but it wouldn’t have possible if there had been a consent agreement that limited debate. So, nothing has really changed.
You can talk a long time to make a point, as Bernie Sanders did last year, or whenever that was, but that is not technically a filibuster.
I’d like a little drama before the Dems lower the boom. How about a list of which senator has a hold whoever and for how long. Wouldn’t you like to know if Sessions puts holds on judges for his state or some other senator puts the hold on judges for his state?
I don’t know, it seems more a problem with the method (rules) to me.
What Booman said. Look at what’s happened to Paul and Cruz with their “filibusters” earlier this year. For each senator, it raised his profile, helped him raise a lot of money, and drew attention to an issue he cared about.
There’s simply not that much downside to a “talking filibuster” for the one who’s considering whether to filibuster.
But Cruz and Paul raising their profile has started some of the serious money moving from GOP to Dems. Some in the business crowd are realizing that the shutdown was not an aberration but a policy driven by an ideology. They are getting nervous.
That this is not a scandal is testament to the fecklessness of the Beltway press.
The conservative movement that took over the Republican Party always viewed itself as a subversive movement that was the mirror-image of their perceptions of the way the Communist Party worked to subvert and take over countries.
They formed a revolutionary front, the Federalist Society, to take over the courts by first of all vetting apparatchiks while they were in law school and then mentoring them into positions of power in the local, state, and federal judiciary.
When it came to deciding cases, partisan benefit trumped constitutional soundness, as we saw in Bush v. Gore and in Citizens United.
The DC Circuit is the base for the FISA Court as well as making decisions on most regulatory matters.
The obstruction by the GOP is unprecedented. This is its fifth year.
It is time to blow away the entire notion of the filibuster in the Senate. The only minority rights it tends to protect are not the rights of ethnic minorities or the economic disenfranchised.
What happens when this is done is that there are Democrats who will not longer be able to hide some of their dealings behind the filibuster. The same will be true in reverse if the position of the parties change. The increase in visibility of Senators’ actions and accountability is worth the risk of unknown future consequences, IMO.
Our politics are not going to be less broken by continuing to capitulate to obstruction.
This has been another edition of “What TarheelDem Said”. (Take note, young’uns.)
Very insightful on the Federalist Society being similar to imagined Communist infiltration. It’s also similar to the real infiltration of the Provisional Government by the Bolsheviks in the Russian Revolution(s).
To understand that whole riff, read John A. Stormer, None Dare Call It Treason or other conservative and John Birch Society tracts from the early 1960s. There was a sense of panic and defeatism and cyncicism even then that has not gone away.
Their terror of Communism with a capital-C was what they peddled and their solutions were to copy the tactics they perceived the Communists as winning with.
I had a US history teacher in high school who tried to get us into this frame of mind. Likely Jim DeMint had her ten years later as he graduated from my high school.
You and Jim DeMint. Hah. That’s pretty funny.
I just found out recently that “PoopBoy” Ted Nugent graduated from St. Viator High School in Arlington Heights, IL. St Viator was 6 blocks from my house. I went to Arlington High School, but Ted played in a rock club in Arlington Heights that my parents didn’t allow me to go to.
Amen
The other thing to keep in mind is that if the GOP ever gets to 51 in the senate they will go full nuclear no matter what the dems do now. Not setting a precedent is irrelevant for dems because the new GOP breaks every precedent it can think of a way to break.
There’s simply no logical reason not to go nuclear now.
I mentioned that explicitly in this piece.
Does anyone know of any instance of the filibuster – real or virtual – being successful to thwart legislation that was NOT in the public’s best interests? What’s the record of positive legislation that was successfully filibustered?
How many terrible Presidential appointments been defeated by a filibuster (other than John Bolton to UN Ambassador) compared to terrible appointments that were confirmed? (Bolton got a recess appointment anyway.) How many good or excellent appointments were successfully filibustered? Has the rejection of the bad been adequate compensation for the loss of the good?
In theory the filibuster should be a good last check on the power of the majority to do harm. In reality it’s probably done harm and little to no good. It would be sad to see another GOP POTUS in 2016 with a GOP Senate (as existed from 2003-2007), but would the preservation of the filibuster improve that sorry state? Difficult to say that it made the Bush/Cheney era less awful than it was, but perhaps it did.
It’s a perfect time for the Democrats to gather their courage, ignore the Republicans as much as possible, and actually move the country to the left. It will be up to the voters to decide if they like the results.
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cua go, tu bep, noi that