Good Posts on Judicial Filibusters

As Patterico blogged The Volokh Conspiracy has had a couple of excellent posts about judicial filibusters in recent days. Juan Non-Volokh says that, contrary to recent claims by Democrats and their shills, President Bush has the lowest appellate nominee confirmation rate of the last three Presidents. And that’s even before he has hit lame duck status! Meanwhile, Todd Zywicki analyzes the history of the filibuster, and says that (contrary to Harry Reid) it has traditionally been thought of as a tool to ensure full debate, rather than as a minority veto.

Juan Non-Volokh blogged In today's NYT, Princeton's Sean Wilentz has a letter (second item) responding to Bob Dole's op-ed on the filibuster of President Bush's judicial nominees. Republicans obstruction of Clinton's nominees "was much more 'extraordinary' than anything since," Wilentz claims. His evidence is the rate at which appellate nominees were confirmed.

between 1995, when the Republicans regained control of the Senate, and 2001, the Republican majority blocked 35 percent of President Bill Clinton's nominees to the federal appeals bench without giving them an up-or-down vote. Many did not even receive a hearing.

By contrast, President Bush has, since 2001, nominated 34 candidates to the federal circuit courts, 10 of whom the Democrats have blocked with filibusters - or just under 30 percent.

Wilentz is not comparing apples with apples here. He's comparing the rate of appellate confirmations under Clinton during a time period when there was a Senate controlled by the opposition party with the rate of appellate confirmations under Bush during a time period when the opposition party was only in control for a short time. To do this Wilentz omits data from the first two years of Clinton's Presidency when Democrats controlled the Senate. Why does he present this selective data? Perhaps because it helps him make his argument. If one looks at the overall confirmation rate of appellate nominees, his claim completly falls apart.

Bush 41 - 78 percent confirmed
Clinton - 74 percent confirmed
Bush 43 - 67 percent confirmed

President Bush has the lowest appellate nominee confirmation rate of the last three Presidents. This is even more remarkable because, of the three, President Bush has had the Senate under the control of the opposition party for the least amount of time. Democrats have controlled the Senate for less than half of Bush's Presidency. Clinton got more of his appellate nominees confirmed, even though the Senate was under opposition control for 75 percent of his Presidency.

So it is clear that what the Dems are saying is misrepresented (what, the Dems misrepresenting something? their mouths must be moving). But even if you accept their claim that Clinton was mistreated, why did they not embrace Frist's proposal to make it a rule that nominations would not be allowed to die in committee? That is because they know that was not the problem. They are just ticked that they dont control the Presidency, the House, or the Senate, and they want to block any effort to get conservative judges on the Court of Appeals (or the USSC).

McGehee blogged Democrats and their apologists have been defending the current obstructionism on Bush judicial nominees by sputtering about how Republicans blocked so many of Clinton’s judicial nominees, while “only a very few” of Bush’s nominees are being blocked. Juan Non-Volokh dismantles the argument.

Mark Kleiman blogged 1) It essentially misses the point. The argument here is over filibusters, not confirmation percentages.... The overall numbers are simply not relevant to the story.

If the numbers don't support your position, you declare them irrelevant.

But let's assume they are--that's what you have to do in a capital where logical arguments don't count for much with the majority party. Let's consider the second point: 2) Bush lost the 2000 election. I know that the Republicans don't want to hear about this, but their guy actually got fewer votes than ours

Presidents are elected by the Electorial College, not the popular vote.

.... The man had no mandate--unlike Bill Clinton, who after all got more votes than George HW Bush or Bob Dole. Now, the obvious response to this is: "Yes, and George W. Bush won the 2004 election." Okay--see objection 1. Were the Democrats threatening to filibuster every judicial nominee that Bush sent up, that would indeed would be a story. But they are not: they are simply doing--almost statistically--exactly what the Republicans did to Bill Clinton for 8 years.

Your position on the first term was that he did not have a mandate because he did not win the popular vote. But the second term he not only won the popular vote as well as the electorial college vote, he got more popular votes than Clinton, so he must have had an even stronger mandate than Clinton.

Todd Zywicki blogged Here's a very simple puzzle that I don't get about the filibuster question. Leave aside the constitutional questions and particularities of procedures to change internal rules. As I understand it, the justification for the use of the filibuster in the Senate (contra the House) is that the Senate is a deliberative body, and that the filibuster permits extended debate on issues that come to the floor prior to taking a vote. But doesn't that imply that when the debate is done and there is no further deliberation, that there is some obligation to bring the matter to a vote?

It certainly seems that way to me

So here's my question. Is there still some debate going on with respect to Justice Owen, for instance, whose nomination has now been pending for 4 years? Are there some Senators who are still on the fence, undecided on how they want to vote on her nomination? If deliberation is done, doesn't that mean that there is an implicit obligation to allow the matter to come to a vote? And if there is no ongoing debate or further deliberation on the matter, then it seems to me that the the Senate should be able to adopt rules that allow fully-deliberated matters to come to a vote and not allow the minority to use the filibuster to kill a matter.

I agree. And if the minority feels it needs to be sure it can fully debate the matter, Frist offerred them 100 hours of debate per nominee.

In fact, the majority needed to invoke cloture has fallen over time (summarized here). Looking at the history, it appears that the rationale for changing the filibuster rules over time has been to balance the rights of the majority to act versus the rights of the minority to state their case. Thus, where the filibuster has been abused by a minority to kill legislation, as opposed to merely slowing it and ensuring full deliberation, the Senate has moved over time to reduce minority abuse of the filibuster while preserving full deliberation. In light of this history, given the apparent absence of any further debate on some of the judicial nominees, it seems plain that the use of the filibuster against Justice Owen (most notably) is quite clearly an abuse of the power. As a result, if the minority fails to end its abuse voluntarily, the Senate majority would be well within its rights to adopt rules that eliminate abuse of the filibuster power, just as it always has in the past.

Several of those rule changes were initiated by Senator Byrd, the one most strongly opposing changing them now. One wonders whether he is really concerned about the Senate's history, or giving the Democrats power. Actually I doubt that very few really wonder about it. It is so obvious.

This distinction between the use of the filibuster to slow versus stop a particular Senate actions seems to be the intuition behind the historic criticism of the use of the filibuster to kill Civil Rights Legislation (and before that, the repeated use of the filibuster to kill anti-lynching legislation of the 1920s and 1930s). In each of those situations, the purpose of the filibuster was its use by southern Senators to kill the legislation outright, rather than merely to ensure full deliberation of the issue prior to a vote. Moreover, this may explain why in the public mind the abuse of the filibuster is associated with such stunts as Senators reading names from a phone book, because these sorts of speeches are seen as abuse of the filibuster, in that they are non-deliberative in nature.

Now they dont even make the Senators try to hold the floor by speaking continuously; they just let one say he is going to filibuster, then they take a cloture vote, and if it fails they pretend he is speaking.

I can't find anything in the Senate history that suggests that it has ever been thought an appropriate use of the filibuster to kill legislative action even after all debate and deliberation is effectively complete. And where the filibuster has been used in an abusive manner to kill rather than slow legislative activity, my reading of the history is that over time the majority has changed the rules in order to eliminate the abusive use of the filibuster power.

Of course, it should be noted the asserted rationale for the filibuster in the Senate may be an ex post rationalization more than an historic justification. Some have argued that the filibuster has nothing at all to do with the nature of the Senate versus the House, but rather is a historical accident. As a historian of the filibuster recently observed:

The right to extended debate was not created until 1806, when the Senate cleaned up its rulebook and dispensed—probably by mistake—with the rule that allowed a majority to limit the debate. Filibusters did not begin in earnest until the newly formed Democratic and Whig parties formed several decades later.

Matt Barr blogged I use scare quotes around "debate" here, describing the no longer required facet of filibustering that meant a Senator had to actually "debate," that is, speak on the floor of the Senate for however long he could keep it going, and I shouldn't. The reason Sens. Reid, Thurmond and Byrd had to get up and speak to effect what used to be a filibuster is that the filibuster was a quaint fiction grounded in a real truth: The minority's right was to continue debate on a measure, not, on its face, to hold it up in perpetuity.

Matt Barr blogged I've been patiently waiting, by the way, for someone to point out (maybe they have) that this centuries-old filibuster tradition that the Democrats want to preserve in the name of fidelity to our grand constitutional scheme until very recently required the filibuster-er to actually filibuster -- that is, "debate" on the floor and not yield time. This has meant Sen. Reid in 2003 "related over several hours the history of Searchlight, Nev., and told how desert rabbits avoid cholla, ocotillo and beaver tails, but the critters do eat other types of cacti" [link] and Sen. Thurmond give us "a 24-hour, 18-minute stem-winder delivered during a filibuster against the Civil Rights Act of 1957" a few years before Sen. Byrd took the floor for more than 14 hours to stymie the 1964 Civil Rights Act [link]. Easy to dig in to protect the filibuster when you don't have to do any actual work.

JMoore blogged I am firmly opposed to filibusters. I have always been. Not only judicial fiibusters, but every sort imaginable. I am also a conservative. Well, a strange mix of libertarian and conservative. Apparently, some argue that conservatives should be hesitant to nuke the filibuster because it is often an impediment to big government. Yes, this may be true, yet, the opposite may also be true.

Imagine if by some miracle there was a fiscally conservative majority in the Senate. I know, it is hard to imagine. Now, say that majority went and did something as drastic as cutting spending, but was facing opposition by fiscal liberals beholden to interest groups dependent upon such spending. If the liberal minority could employ the filibuster to block measures to reduce government, should conservatives continue to support it? This goes hand in hand with the less than altruistic history of the filibuster (i.e., being used against civil rights legislation).