May 23, 2005
We Don't Like the Rules: Break Them
The Big Confrontation has begun in the Senate. It’s not about the judges nominated - Priscilla Owen and Janice Rogers Brown. It’s not about activist or non-activist judicial philosophy. It’s not about political partisanship. It’s not about any principle, such as conservatism or liberalism. It’s not even about the virtues and flaws of the filibuster. The Confrontation is strictly about power. Republicans deem the filibuster rule to be in the way of their packing the Supreme Court, so they plan to break it. Despite the fact that Senate rules do not allow the “nuclear option”!
Norman Ornstein, of the conservative American Enterprise Institute, who studies the history and ways of the Senate as an institution, states in glaringly obvious terms, that the "nuclear option" is against Senate rules:
"To make this happen, the Senate will have to get around the clear rules and precedents, set and regularly reaffirmed over 200 years, that allow debate on questions of constitutional interpretation--debate which itself can be filibustered. It will have to do this in a peremptory fashion, ignoring or overruling the Parliamentarian. And it will establish, beyond question, a new precedent. Namely, that whatever the Senate rules say--regardless of the view held since the Senate’s beginnings that it is a continuing body with continuing rules and precedents--they can be ignored or reversed at any given moment on the whim of the current majority."
These points are clear:
- The filibuster has been around for over 200 years
- To stop a filibuster requires 60 votes.
- To change a rule requires a 2/3 majority - 67 votes.
- Before changing a rule, you must allow a filibuster about it
- If you do not know the rules, ask the parliamentarian, who has already said that a rule change would require 67 votes.
"Ignored in this argument has been Senate Rule XXXI, which makes clear that there is neither guarantee nor expectation that nominations made by the president get an up-or-down vote, or indeed any action at all."
There you have it. The "nuclear option" is nothng but a power play. Republicans are willing to disregard Senate rules in order to get their way. If we allow this, they will keep on ridding the Senate of rules that stymie them and their agenda. The Senate will become a rubber stamp for those in power. Our democracy and its checks and balances will suffer.
You've been hearing all kinds of propaganda about the evils of "liberals," "Democratic obstructionists" and "secularist devils." All in order to gain non-democratic power. The Senate filibuster rule stymies Republicans, so they intend to break it.
The issue is joined: Republicans want to break rules. Democrats want to keep them.
Posted by Paul Siegel at May 23, 2005 02:30 PMPaul,
History is written by the winners so what will our grandchildren read of this? Will it be the last chapter of “The American Revolution (1776 - 2005)” or an interesting lesson of our great experiment?
Posted by: Dave at May 23, 2005 03:12 PMSen. Byrd is just now making an extremely valuable point. The nuclear option which he now terms the Turnip Truck option, has been around and available to Senators of both sides for more than 100 years, and none chose to exercise it even in the most vehemently contested issues and times.
He lends credence to your argument Paul Siegel that this is a pure power play devoid of respect for the Senate’s predecessors, the framers intents to establish the filibuster in the first place, and devoid of respect for the American people and their future under a government in which rules are for suckers, power is about winning at all costs.
Posted by: David R. Remer at May 23, 2005 03:32 PMPaul,
You may be right in saying that at this moment, this is all about Republican’s flexing their muscles to display what they perceive as their unlimited power, but ultimately, after they’ve stacked the judicial deck, it will be about the fact that the Supreme Court will be controlled by rigid ideologues from the religious right for the next forty years.
I think the fillibuster used in it’s original format is great. (I am a conservative Republican with leanings to the right). I think it’s a political tool that is there to be used and if someone uses it (in this case THEM) then WE have not done our job well enough to take the fillibuster out of the equation. I don’t know exactly how but I understand that fillibusters can be broken. WE need to employ whatever practice it takes to do it.
There has to be more than a THREAT of the fillibuster, you should not be able to simply hold up a card and say “By the way, I am fillibustering now”, you should have to do it.
I love it, I say let’s have one. It will keep the media busy for quite some time.
Posted by: steve at May 23, 2005 05:19 PMPaul,
I recently made the prediction in a blog post, that the Republicans and the Right are on course to mis-judge a victory on ‘the nuclear option’ - just as they did in the aftermath of the successful Iraqi Elections in January. Their game plan is narrowly focused on successfully manipulating the debate to achieve just one goal - a Senate showdown victory.
The one lesson they did not learn from the Gingrich shutdown debacle in 1998 (but Reid & Co. have), is making a convincing argument for causing governmental gridlock. There have been many more voices on the Right willing to make the case for rescinding the Senate filibuster than on Bush’s Social Security plan. Unfortunately, the distortions, exaggerations and demagoguery that make up their assertions, have yet to convince their own party’s rank and file, let alone the American people.
Couple a lack of credible principles to stand on and the already cemented image of doing the bidding of an entitled, intolerant extremist group, and the Republicans are woefully unprepared for the task that may be ahead of them.
Although, you’d think Rick Santorum would have a clue from a recent experience.
With a similar faulty, deceitful pitch on Social Security, Santorum was just one of many Republicans who bore the brunt of voter anger, obviously not deceived by Bush’s bait and switch.
If Frist & Co. were to prevail, the Dems would be smart to repeat their effective strategy of publicly staying out of the Schiavo media circus. Giving the Republicans plenty of air time to get their story straight.
Posted by: Bert M. Caradine at May 23, 2005 05:37 PMHa. I have been saying this about the Repubs on this issue since day one. Of course the Repubs want an “up or down” vote, and like now. They know they are a majority. But I also believe if the situation were reversed, the Dems would probably resort to the same set of actions. I put no dirty trick above any politician.
(Just more reasons to keep voting out the incumbents. Or like I do, vote for third parties and independents.)
Posted by: brutalnaivety at May 23, 2005 06:15 PMPaul -
Your exerpt from the AEI is deceptive in that it fails to mention how the filibuster has been regularly updated and limited from the get-go.
For the first sixteen years of Senate history, the “Nuclear Option” was in effect. It was called “Motion for the Previous Question”. It was left out of the 1806 rule codification because it was so rarely used.
When it became apparent that some limits needed to be set on filibustering, updates were made that limited the ability of Senators to filibuster in 1917, 1949 (?), 1975, and 1979. The proposed rule change would bring us full circle.
I understand Democrats’ opposition to the change. They certainly should oppose it - its passage would render them even more useless than they are already. However, neither side should pretend this is an issue of principle or constitutional fidelity: it’s a political debate over how a political body should run, no more.
Posted by: Chops at May 23, 2005 06:33 PMMr. Bush nominated 52 people to the appellate courts in his first term. Thirty-five were confirmed, but 17 were not. 67 percent is the lowest rate in modern times.
Clinton’s eight-year appellate confirmation rate was 74 percent, in addition to getting two liberals confirmed to the Supreme Court. Clinton got 377 judicial nominees confirmed.
Remember that the Republicans control the Senate now and they controlled it then, and despite that, they confirmed more of the nominees.
We should not have to have a 60 vote majority to confirm judges and leading Democrats agree.
“According To The U.S. Constitution, The President Nominates, And The Senate Shall Provide Advice And Consent. It Is Not The Role Of The Senate To Obstruct The Process And Prevent Numbers Of Highly Qualified Nominees From Even Being Given The Opportunity For A Vote On The Senate Floor.” (Sen. Barbara Boxer, Congressional Record, 5/14/97, p. S4420)
” It Is Wrong To Filibuster This Nomination, And The Senators Who Believe In Fairness Will Not Let A Minority Of The Senate Deny [The Nominee] His Vote By The Entire Senate.” (Sen. Ted Kennedy, Congressional Record, 6/21/95, p. S8806)
“For Too Long, We Have Accepted The Premise That The Filibuster Rule Is Immune. Yet, Mr. President, There Is No Constitutional Basis For It.” (Sen. Joseph Lieberman, Congressional Record, p. S36, 1/4/95)
Jack, and 58% of the current federal judges were appointed by Republican presidents. What is the goal, 75%, 100%. Sounds right.
For all your quotes, it sure seems there were a fair number of Republicans who fear eliminating the filibuster, as evidenced by the compromise struck this afternoon.
Posted by: David R. Remer at May 23, 2005 10:32 PMJack,
Here’s a breakdown of the numbers according to the Legislative and Executive Calendar of the U.S. Senate Judiciary Committee, as reported by the New York Times. It’s true that Clinton had a somewhat higher judicial confirmation rate in terms of appellate court nominees compared with George W: 59% for Clinton and 53% for Bush 43. However, Bush had the advantage in terms of district court nominees: 87% for Bush and 81% for Clinton.
The fact is, those are both historically low rates when you look back as far as Truman. From Truman up until Reagan, in fact, the confirmation rates hovered in the 80-90 percentage rate ranges. Beginning with Bush 41, things started getting somewhat more partisan (confirmation rates in the 70 percentage range). Then things got truly ugly in the Clinton era and remained ugly in the Bush 43 age.
In other words, things have gotten much more partisan in recent years. The Democrats started the trend in the late 1980s and the Republicans upped the ante in the Clinton years. The Bush 43 years have been payback for the Clinton years, to some extent.
Now, the senators have come up with a kind of truce for now. Maybe this can turn the ugliness around for a while. Maybe this can even go a way toward healing a badly divided nation. That’d be nice for a change: an America no longer held hostage by the fringe elements of its society. Of course, that could also wind up being wishful thinking. Time will tell. For now, let’s enjoy the moment.
Posted by: Reed Sanders at May 23, 2005 10:48 PMWhy is it that every person who votes republican has to be labeled a religious nut? im very coservitive but im a pantheist! {look it up if you dont know what that is} with no faith in “god” in the traditional sence.
But i believe the country has a strong past and we dont need to change “everything” in the name of progresive politics. I also believe we will lose the war on terror as stated in my blog www.vipers-pit.net. As far as gay rights thats fine with me. But a traditional wedding ceramony is a little over the top. If they want to share health insurance ok, fine.
But im not for abortion as a means of birth control. if the father wishes to raise the child he should have the right! as it stands the father has NO RIGHTS in the mater and that is simply wrong. if you say that forces his will onto the mother than she shouldnt have had sex in the 1st place.
This is a matter very close to my heart as i had my child taken away when i was more than willing to raise him myself. a child is a beautiful thing and not something to be terminated unless both parties agree. untill such a decission is made i have no choice but to vote republican for the most part. not straight line party!
I live in north east ohio and its a shame to see the election signs read “DEMOCRAT” in bold letters and the persons name in much smaller letters under it. they are clerly running on part name rater than there own name and beliefs.
its a shame
Posted by: viper at May 24, 2005 12:36 PMIt seems funny that now everyone is up in arms about the republicans controling the supreme court for 10 to 20 years.I would have never thought that americans would sell their birth rights out to fear.THE WAR ON TERRORISM WAS LOST WHEN THE PATRIOT ACT WAS VOTED IN. I HOPE OUR GOING AWAY PARTY IS AS BIG AS THE EGOS THAT THOUGHT AMERICA WAS UNDEAFEATABLE.I GUESS WHEN THE RUSSIAN LEADER TOOK HIS SHOE OFF AT THE UNITED NATIONS MEETING AND SAID THEY WOULD TAKE AMERICA WITHOUT FIRING A SHOT WAS AN UNDERSTATEMENT. I DON’T THINK THAT THOSE TERRORIST EVEN HAVE THEY’RE ON COUNTRY.TO EVERYONE THAT READSTHIS AND HAS HAD FAMILY MEMBERS DIE PROTECTING OUR RIGHTS AND LIBERTIES I’M TRULY SORRY. PLEASE FORGIVE MY COUNTRYMEN.
Posted by: randy at May 24, 2005 04:56 PM