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11/23/2004
Defeating Judicial Filibusters: The Conventional Warfare Option
Filed under: Judiciary Patterico @ 1:18 pm
Republicans, frustrated with Democrat obstructionism of President Bushs judicial nominees, have publicly discussed a nuclear option for ending filibusters. The option under consideration would use a parliamentary maneuver to accomplish a rules change eliminating the power to filibuster judicial nominees.
The nuclear option faces major obstacles, not the least of which is its unfortunate name. The American public is understandably loath to resort to a nuclear solution to any problem, unless it is demonstrated to be the absolute last resort, to be employed only in the most dire circumstances.
The obvious question arises: is there some way to win this war without resort to the parliamentary equivalent of nuclear weaponry? In short, is there a conventional warfare option for ending filibusters of judicial nominees?
I believe there is.
My proposal is premised on a fundamental and indisputable fact: never in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate. All of President Bushs nominees would win a floor vote if one took place. Preventing a floor vote under these circumstances is unprecedented.
I propose that the Republican majority highlight this fact, by forcing a floor vote on a non-binding resolution of support for each nominee who has been the victim of a Democrat filibuster. The Republicans could force this vote by using the same parliamentary tactics that they propose to use to force a floor vote on the nominations themselves. But the resolution I propose would not have any real-world effect, other then to force all 100 Senators to state publicly whether they would support a particular nominee yes or no.
Such a proposal would accomplish several goals.
Most importantly, I expect that each of President Bushs nominees would garner a yes vote from a majority of Senators. This would demonstrate in a concrete way that each nominee would be confirmed if a floor vote were allowed. It is one thing to make that assertion. It is quite another to prove it with an actual vote.
When the public sees in the headlines that Judge Smith received support from a majority of U.S. Senators, many will initially assume that Judge Smith has been confirmed. When people are told that, no, Judge Smith is still awaiting confirmation, the public is going to want to know why.
And then, just maybe, people will start to get it.
This procedure would make this point in a manner that would not come across like bullying. Rather than steamrolling Democrats and pushing Bushs nominees through the confirmation process, Republicans would be seeking merely to communicate information to the public, concerning the level of support Bushs nominees enjoy on the Senate floor.
Because this procedure is less confrontational than the nuclear option, it would be palatable to a larger segment of the public and also to more liberal Republican Senators, who might shy away from a more direct, brass-knuckles maneuver like eliminating the judicial filibuster altogether. By getting yes votes from these Republicans, this procedure would demonstrate to Democrats that Republicans have the muscle to get even their most liberal Senators solidly behind George Bushs judicial nominees.
Precisely because this procedure would make such an effective political point, Democrats would likely fight it tooth and nail. They will probably even try to filibuster it. And if their filibuster is ruled out of order, they will complain bitterly.
Fine. Let them. Such noisy complaints will only bring more publicity. And Republicans have a ready rejoinder: what are the Democrats afraid of? The votes wont confirm any judges. They will simply answer the question whether these judges really have majority support on the Senate floor.
Are the Democrats really scared to let the American people hear the answer to that question? That is the question Republicans should be asking. It is a question that Democrats cannot answer.
I believe that if this procedure is employed, and President Bushs nominees are concretely demonstrated to enjoy majority support in the U.S. Senate, the filibusters will collapse under their own weight.
And Republicans will have won by conventional means without risking the fallout that inevitably comes with the use of a nuclear option.
UPDATE: Thanks very much to Howard Bashman for the link.
UPDATE x2: Beldar has an excellent post supporting the nuclear option. I wonder what he would think of my idea of preceding the nuclear option with conventional warfare, to see if it is enough to break the filibusters.
UPDATE x3 (5-3-05): Thanks to Mickey Kaus for the link. I have reopened comments on this thread.
UPDATE x4 (5-4-05): Thanks to Glenn Reynolds for mentioning the proposal, which he calls just a bit too clever. I respond here.
I should stress that this proposal is not necessarily a substitute for the nuclear option. It may well be a precursor to it but one that helps change the terms of the debate in Republicans favor.
In this sense, the proposal is like a series of air strikes at the beginning of a war. It may not win the war but even if it doesnt, it softens up the enemy for the eventual attack.
UPDATE x5 (5-5-05): More on the reasoning behind this proposal here.
were you in the background cheering frist on when he was filibustering paez?Pale Rider said:I listened to a little of the back and forth banter between Byrd and Frisk today on this subject on C-Span. All I can say is I'd never make a politician, because after listening to only fifteen minutes of Byrd, I wanted to knock the old babbling fool out.
SmarterThanYou said:were you in the background cheering frist on when he was filibustering paez?
SmarterThanYou said:were you in the background cheering frist on when he was filibustering paez?
Frist and filibusters Point, Set, Match
Posted By Carpetbagger On 5th January 2005 @ 09:55
Senate Majority Leader Bill Frist has spent the better part of the last two years insisting that the Senate has never tolerated a minority of the chamber to filibuster a presidents judicial nominees. To hear him tell it, the very idea flouts constitutional principles, ignores the Founding Fathers, and undermines the judicial process.
Dems have a variety of persuasive retorts to Frists transparent nonsense, but the most compelling has to be the one the Center for American Progress highlighted yesterday: Bill Frist supported filibustering Clintons judicial nominees.
Documents obtained by American Progress show Frist participated in an effort to block one of Bill Clintons judicial nominees via filibuster, then lied about it.
In recent weeks, Senate Majority Leader Bill Frist has been relentlessly preaching about the evils of judicial filibusters. Speaking to the Federalist Society on November 12, Frist said filibustering judicial nominees is radical. It is dangerous and it must be overcome. Frist called judicial filibusters nothing less than a formula for tyranny by the minority. When Bill Clinton was President, however, Frist engaged in the same behavior he is now condemning.
In 1996 Clinton nominated Judge Richard Paez to the 9th Circuit of the United States Court of Appeals. Conservatives in Congress held up Paezs nomination for more than four years, culminating in an attempted filibuster on March 8, 2000. Bill Frist was among those who voted to filibuster Paez.
Frist was directly confronted with this vote by Bob Schieffer on Face the Nation (11/21/04). Schieffer said Senator, a group called The American Progress Action Fund sent me a question to ask you. And heres what it says: ?Senator Frist, if you oppose the use of the filibuster for judicial nominations, why did you vote to filibuster Judge Richard Paez when President Clinton nominated him to the 9th Circuit? Frist replied Filibuster, cloture, it gets confusingas a scheduling or to get more information is legitimate. But no to kill nominees.
But American Progress has obtained a document that proves Frist was not, as he suggested, voting to filibuster Paez for scheduling purposes or to get more information. He voted to filibuster Paez for the very reason he said was illegitimate to block Paezs nomination indefinitely.
On March 9, 2000, Former Senator Bob Smith (R-NH) issued a press release describing the intent of the Paez filibuster vote the day before. The release says Senator Smith built a coalition of several moderate and conservative Senators in an effort to block Paezs nomination. Frist was a part of that coalition. Smith did not organize the filibuster to get more information on Paez (after all his nomination had been pending for four years). He organized the filibuster because he had already decided Paez was out of the mainstream of political though and should [not] be on the court.
So, Frist is not only deceiving people by insisting that judicial filibusters are unprecedented, hes also an obvious hypocrite. When Dems do it, theyre destroying the Senate. When he does the exact same thing, hes well within his rights as a senator.
Maybe Im reading too much into this, but the CAP revelation seems like the kind of tool that should seriously undermine Frists efforts to permanently change the filibuster rules. When Frist says the Dems tactics are dangerous, Dems will say, You did the same thing. When Frist says the filibusters are unconstitutional, Dems will say, You did the same thing. When Frist says no Senate has ever tolerated judicial filibusters, Dems will say, You did the same thing.
There are a handful of Republicans who are still uncomfortable with the idea of the nuclear option and its consequences. This revelation should help remind them that Dems wont be in the minority forever and Republicans may want to use some of the same tactics in the future that theyve utilized in the past.
Conservatives in Congress held up Paezs nomination for more than four years, culminating in an attempted filibuster on March 8, 2000
he voted for it, which means that he used it and approved of its use. You've seen his quote, i've posted it many times. he's a hypocrite for denouncing it now.rtwngAvngr said:An attempted filibuster is not a filibuster. Hence, a filibuster has never been used to block a judicial nominee.
SmarterThanYou said:he voted for it, which means that he used it and approved of its use. You've seen his quote, i've posted it many times. he's a hypocrite for denouncing it now.
theim said:I don't get why I don't se any Repulicans going on TV and explaining that all the big scary "nuclear option" means is that people vote, and the side with the most votes wins. Because that's really all that it is.
pray tell, how?dilloduck said:trying to compare his actions to the hypocrisy of the dems is absurd
pegwinn said:I still say that they need to go back to the old school filibuster rules. Quorum calls and iron lungs. No bathrooms, no breaks, no surrendur, and an immediate vote as soon as they let the floor go.
rtwngAvngr said:An attempted filibuster is not a filibuster. Hence, a filibuster has never been used to block a judicial nominee.
no1tovote4 said:It happened once with a SCOTUS Justice.
http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm
The 1990 Budget Battle Redux: Why the Democrats will win the judicial filibuster fight
Do the Senate Republicans have the votes to use the "nuclear" option? Yes.
Should the Republicans employ this "last ditch" tactic to approve the judges? No
Will the GOP ultimately lose this "confirmation war" even if they win this nomination battle? Yes
The GOP's inability to properly read the ramifications of the first two questions is why the third question is the ultimately reality Republicans will suffer due to the short-sightedness of the current Senate leadership. If the GOP could simply learn from its recent past, it would be easy to see the Democrats have suckered the GOP into a contest they have every right to win, but can only do so (under current circumstances) in a manner that will erode the party from within. We have seen this story before and it turned out badly. It was the 1990 budget battle and it cost the George Herbert Walker Bush (41) the 1992 election as well as numerous Supreme Court nominees (which is what this is all really about).
In 1990, the Democrats threatened the extraordinary measure of shutting down the government unless 41 signed a budget that went back on his famous "read my lips" promise to not raise taxes (just as the Democrats today threaten a filibuster unless Bush 43 removes his current nominees). What 41 failed to appreciate, and the Democrats knew all to well -- despite their threats -- is that the American public would not tolerate the extraordinary measure of shutting down the government (if you don't believe me, see Clinton Chief of Staff Leon Panetta about the disastrous 1995 Gingrich-led government shut down) -- especially if the alternative meant raising taxes. But 41 was not a "true believer" on taxes and took the word of Majority Leader (and Democrat) George Mitchell (who said he would cut the deficit if 41 raised taxes) so he caved in and raised taxes. We all know the rest as the Democrats refused to cut the deficit and 41 lost to Bill Clinton in 1992 after the economic conservatives abandoned 41.
Had 41 stuck to the principled argument that he would not be held hostage to the threats of the Democrats and forced a national debate on the merits of raising taxes (at the expense of making the Democrats look unreasonable by taking the extraordinary step of shutting down the government), the Democrats would have caved and history would have been very different in 1992.
Today, Bill Frist and Senate Republicans have two real choices: 1) take the extraordinary step and employ the "nuclear" option or 2) simply call the Democrats bluff and force a national debate by making them actually filibuster these nominees (and this doesn't mean the flimsy "virtual" filibuster). Just as 41 blinked and took the extraordinary step of going back on his word and raised taxes, if the GOP takes the extraordinary step and goes "nuclear," the public will view the GOP as the aggressor and side against them.
However, if the GOP puts this judicial fight to the public, and follows the Constitutional option, and forces a real filibuster, this is a no lose option for two reasons: First, unless the Democrats cave (which I believe they will), the Democrats will look unreasonable as the light of day shown on these nominees will convince the public that these are well qualified judges -- undeserving of the Democrats "extremist" labels. Second, if they do filibuster these nominees, as the public grows tired of seeing Ted Kennedy, Chuck Schumer and Barbara Boxer (Hillary is too savvy to go anywhere near this) bloviate incessantly on C-Span, the sentiment will gravitate towards the now last-ditch maneuver of the "nuclear" option and the GOP will no longer look like the aggressor in this judicial battle. And, if the Democrats have the brass to filibuster the current court nominees, when the time comes for Supreme Court nominees, they will have "spent their powder" and the public will have tired of their uncompromising antics and obstinate practices. This would render the opposition impotent for the real confirmation battles ahead at the Supreme Court. The Democrats cannot afford option #2, which brings us back to the Democrats caving.
Unfortunately, nothing today tells me that the current leadership sees the obvious parallels between the brinksmanship of 1990 and today. Additionally, nothing in the GOP leadership shows me they can procedurally out-maneuver an admittedly savvy opposition (they out-maneuvered the GOP on Bork, out-maneuvered the GOP on the 1990 budget, and out-maneuvered the GOP on the 1995 government shut-down).
Unless something un-dramatic happens and the GOP simply insists on a 24-hour, non-photo-op, talk 'till you are wasting the public's money and reading out of a phone book filibuster, the GOP will likely go to the extra-ordinary measure of going "nuclear" and lose the judicial nominee war (the Supremes and the 2006 and maybe 2008 elections), even if they win this current judicial nominee battle.
If he had the chance to do it all over again, ask George Herbert Walker Bush if he would let the Democrats dictate his hand? I wish Bill Frist knew the obvious answer.
Posted by Kevin Patrick at May 16, 2005 10:08 PM
