Wednesday, May 18, 2005

Going Nuclear

According to current reporting, the opening salvo in Bill Frist's attempt to eliminate the filibuster will be fired this morning. At this point, it remains unclear how this particular gambit will play out. However, whatever the result, it might be useful for us to all understand what is actually occurring. Unfortunately, the avalanche of rhetoric that we have all endured has done little to clarify the issues. I offer this post in a modest attempt to rectify this situation.

The first question worth investigating is how did we get here in the first place? While the claim that the judicial filibuster is unprecedented is, to say the least, overblown, the situation we currently face is undeniably unique. The sheer number of judicial candidates who are being held up by the threat of filibuster clearly indicates that something unusual is unfolding. What's going on?

Well, way back in November, Kevin Drum provided us with a little recent history. At one point, not long ago, controversial nominations rarely made it to the floor. Why?
For decades, the rule was this: if both senators from a judge's home state objected to (or "blue slipped") a nominee, he was out.
But then, the Republicans took control of the Senate. Once that happened, these rules began to change.
  • In 1998, for no special reason, Orrin Hatch decided that only one senator needed to object to a nomination. This made it easier for Republicans to obstruct Bill Clinton's nominees.

  • In 2001, when one of their own became president, Hatch suddenly reversed course and decided that it should take two objections after all. That made it harder for Democrats to obstruct George Bush's nominees.

  • In early 2003, Hatch went even further: senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it would still go to the floor for a vote.

  • A few weeks later, yet another barrier was torn down: Hatch did away with a longtime rule that said at least one member of the minority had to agree in order to end discussion about a nomination and move it out of committee.

  • In light of these changes, it is hardly surprising that Democrats are wielding the threat of filibuster so freely. At this point, it is the only remaining check on majority power available to them. So, it isn't that Democrats have become petty and anti-democratic. It is simply that the rules of the game have changed.

    Another criticism that has been leveled against the judicial filibuster is that it is an abdication of the Senate's constitutional obligation to "advise and consent." This argument is typically coupled with the claim that the filibuster creates a supermajority requirement for judicial confirmation -- a requirement absent from the Constitution. According to those who would make this argument, the Constitution requires an up or down vote on all judicial nominees, to be decided by a simple majority.

    However, according to Publius at Legal Fiction, this isn't quite right. While commenting on the Justice Sunday event from a few weeks ago, he noted the following:
    Though it seems reasonable, this constitutional argument won’t work. The Constitution does say “advise and consent,” the but it never defines “consent.” What is or isn’t “consent” is determined by internal Senate rules. In other words, the Senate gets to decide how it approves of everything from legislation to treaties to nominees.

    If you’ll remember, the GOP once pushed for supermajority approval to raise taxes. Even if that’s unwise policy, it is perfectly constitutional. The Senate gets to make its own rules. Currently, the Senate rules (agreed upon ex ante by a supermajority) contemplate filibusters, and the Senate therefore does not “consent” as a body if a filibuster is successful. It’s part of the rules and it’s perfectly constitutional. The Justice Sunday speakers were wrong to equate “consent” with an up-or-down vote – an up-or-down majority is merely one of many possible ways to consent.
    So, while it is amusing to see strict constructionists read meaning into our founding document, such an interpretation is pure fabrication. Quite a tasty piece of irony, if you ask me.

    The next point I will raise has to do with how the rule is actually being changed. Traditionally, amending Senate rules requires a two thirds majority -- 67 votes. Of course, if Republicans can't get 60 votes to close floor debate on a judicial nomination, they obviously aren't going to be able to get 67 votes to change the rule. So, how exactly are they going to change this rule? For this, we turn to Mark Kleiman.
    But it seems to me that the "nuclear option" question isn't really about the filibuster, or about judicial filibusters, at all. It's about cheating. The Senate, acting under Constitutional authority, has created rules for itself. Those rules include a provision that changing the rules requires a two-thirds majority. (Requiring a super-majority for rules changes seems to me sound, since otherwise there would be in effect no rules at all that a temporary majority had to respect.)

    The "nuclear option" involves the Vice-President, acting as the President of the Senate, making a clearly false decision about what the current rules are…
    What is actually going to happen is that Frist is going make a motion to the effect that the filibuster is "out of order." Then, in spite of the fact that the filibuster is clearly permitted by Senate rules, Cheney will agree. Therefore, it isn't that the rule will be changed -- it's that it will be willfully ignored. So much for the rule of law.

    Finally, I think that is important to note that, so far, no filibuster has actually occurred. That might seem strange to say, given all the discussion that we have had of late. But, it is in fact true. A filibuster, a real filibuster, occurs when, and only when, a senator or a group of senators takes the floor and holds it indefinitely. What we have seen thus far is merely the threat of a filibuster. The difference between a filibuster and the threat of one is enormous because a real filibuster requires a tremendous amount of commitment. Holding the floor requires that you ignore all other priorities. No other Senate business is conducted. Travel plans and fund-raising efforts must be tabled. It frequently isn't even possible to sleep in one's own bed. Therefore, the filibuster isn't just a count of 40 votes; it is a measure of the degree of opposition. You don't just raise your hand and get it done. You have to really want it.

    If you want to beat a filibuster, the same rules apply. You have to work, struggle, and endure. The thing is, though, you have the numbers. If both sides are equally committed, no filibuster can hold. The majority will eventually win. It might be hard, but it can be done.

    And, for me, that's really the bottom line here. All the talk about the unprecedented nature of the judicial filibuster or the so-called constitutional requirement for an up-or-down vote is just smoke and mirrors. The truth is that the Republican majority wants to install controversial nominations over the objection of a dedicated minority, and they want it to be easy. At the beginning of this post we saw how the rules governing judicial nomination have been changed in order to facilitate confirmation. Removing the filibuster is simply the next step on this path. Republicans want what they want and, by God, they're going to get it.

    Reasonable people can and do disagree about the filibuster from a policy perspective. That's an interesting discussion. If the debate was turning on that issue, I wouldn't have a problem with it. But, let's face facts. This is nothing more than an attempt to tilt the scales even further in the direction of the current Republican majority. In the process, long-standing tradition and the integrity of Senate rules are being assaulted. Say what you will about the filibuster; ends do not justify means. The "nuclear option" is a crime committed in broad daylight. Don't let anyone tell you different.
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