Lesson on the Filibuster

Hat tip to Blogs for Bush for pointing to what Sen. Orrin G. Hatch (out-going Chairman of the Senate Judiciary Committee) said in GOP Senator Offers a Lesson on the Filibuster.

Before 2003, no majority supported judicial nomination had been defeated by a filibuster. Under our Rule 22, we did vote on motions to end debate on judicial nominations, though we did so just 15 times in 35 years. Simply taking a cloture vote, however, does not mean a filibuster is underway. In fact, some of those cloture votes were used deliberately to prevent filibusters, clearing the procedural path and guaranteeing an up or down confirmation vote....

Before 2003, only one judicial nomination on which cloture was not invoked was not confirmed. Opposition to cloture on the controversial 1968 nomination of Abe Fortas to be Chief Justice was evenly bipartisan and showed that the nominee lacked clear majority support.....

Before 2003, if the Senate rejected a judicial nomination that reached the Senate floor, we did so by voting it down; filibusters did not prevent a final vote in order to keep a nomination from confirmation.....

Those who want to end this Senate tradition of giving judicial nominations reaching the Senate floor an up or down vote fear they will lose if we follow that tradition. To them, the end of defeating President Bush’s judicial nominations justifies the means of destroying Senate tradition. Being honest about it would reveal how such partisan strategies are politicizing the judicial appointment process, so they try to make other arguments.

They claim Republicans filibustered President Clinton’s judicial nominations, but each of his judicial nominees on whom we took a cloture vote is today a sitting federal judge.

They claim they don’t filibuster very often, which is beside the point if using the filibuster against judicial nominations violates constitutional principles and departs from Senate tradition. There have already been enough judicial nomination filibusters to give President Bush the lowest appeals court confirmation rate of any president since Franklin Roosevelt.

Or they claim they filibuster only nominees who are out of some kind of mainstream. It is difficult to know what that charge really means, especially since the American Bar Association, which Democrats once considered the gold standard, has found them qualified.....

Filibusters of Legislation and of Judicial Nominations are Not the Same

Mr. President, the Senator from West Virginia next equated filibusters of judicial nominations with filibusters of legislation. His policy arguments in favor of the filibuster, however, apply only to the legislative process. He said, for example, that without the filibuster “there exists no leverage with which to bargain for the offering of an amendment. All force to effect compromise between the parties will be lost.” .... this notion obviously applies where the Senate either fashions or affects legislation, but it is irrelevant to nominations

Democrats' history on filibusters belies their current stance indicated In terms of personal history, Byrd left out a few facts of great saliency in his speech. In his long litany of majority abuses, he failed to note his own past history as a member of the Ku Klux Klan, a group dedicated to the abuse of a minority of the citizenry.

Further, he didn't note his own association with the most infamous and longest filibuster in the Senate's history: the 534-hour, 1-minute and 51-second attempt to block the Civil Rights Act of 1964.

Of course, mentioning either of those facts wouldn't have exactly bolstered his argument.

Even of more significance than these embarrassing incidents from Byrd's past is the fact that despite his protestations that the rights of the minority to debate in the Senate should be sacrosanct, it was Byrd himself, as Senate minority whip in 1975, who successfully led the charge to lower the threshold for stopping a filibuster from 67 votes to 60 votes.

Such a move diminished the power of the minority party (then the Republicans), a cause that Byrd now paints himself as the champion of.

Further, in a debate in 1979 over the rules of the chamber Byrd argued that each new Congress had the right to change the rules made by previous Congresses. He stated specifically "this Congress is not obliged to be bound by the dead hand of the past."

Yet he is now arguing that rules from the past cannot be altered.

It should be noted the filibuster is not a constitutional right, but rather one that derives from the rules of the chamber itself. And, as noted above, those rules have been altered from time to time.

Indeed, the closest thing to this issue in the Constitution is the fact that "Each House may determine the Rules of its Proceedings" (Article I, Section 5, Clause 2). That clause indicates that any given Congress can change its own rules as it sees fit.

Beyond the issue of Byrd's remarkable hypocrisy on these issues is the fact that he is being blatantly disingenuous about what the Republicans and Democrats want at this moment in time. He claims, especially in his Post column, that the Democrats want the ability to debate, while the Republicans seek to squelch debate.

This is demonstrably false.

If all Sen. Byrd and the Senate Democrats want is a debate, then they can have it. The Republican majority is not adverse to a debate; indeed, what the Democrats are currently filibustering is a debate about these nominees, because the goal of the filibuster is to block the nominations from reaching the floor, which is where debate takes place.

The debate now, if one wants to call it that, is a debate over whether to have a debate about these nominees. It is, therefore, the Democrats who are blocking debate.

If this was about debate, then the Democrats could take the floor and attempt to employ their persuasive powers to try and change the minds of some of the majority, or to use the press to transmit their views to the public in hopes that the public, in turn, would pressure the majority.

However, this is not about defending the right of the minority to debate (they have that now). It is about the right to outright block the president's nominees (which they have been exercising for several years now).

Since they appear to assume that their persuasive powers are inadequate, they have chosen to use the filibuster rule as a blunt instrument that cuts off debate, rather than enhancing it.

The goal is the destruction of these nominations, plain and simple.

Ultimately the Democrats face some hard choices: either compromise on some of the nominees, or force the hand of the Republicans on the "nuclear" option. Democrats are betting that if the Republicans go nuclear, that they will be able to win the PR war by shutting down the Senate in protest.

However, they should check their congressional history: Former speaker of the House Newt Gingrich shut down the government over a budget dispute with President Clinton in late 1995/early 1996.

But the strategy backfired and Gingrich was never the same again, politically speaking.