Dean-Of-Washington-Journalists David Broder seems to think the Senate filibuster was invented by Cicero, embodied in the Constitution, and defended as the bedrock of democracy by George Washington in his Farewell Address.
But it is remarkable that the United States Senate is considering reducing itself to a smaller version of the House of Representatives by curtailing its long tradition of unlimited debate merely to satisfy the imperatives of rival interest groups.
Let’s see, would that “long tradition” extend all the way back to 1995, when liberal Democratic Senator Tom Harkin proposed
a declining vote requirement for cloture, so that by the 4th cloture vote, a simple majority of the Senate would suffice to end debate and allow the Senate to proceed to a vote on the merits of the matter at hand.
Or maybe all the way back to 1975, when the rule was amended to reduce the number of Senators required for cloture from 66 to 60? Or to 1949, when the ability to impose cloture was extended to procedural motions?
In short, the Constitution authorizes the Senate to set its own rules (within the boundaries imposed by the Constitution, of course), a power it has exercised many times regarding the filibuster since that device was used for the first time by John C. Calhoun in 1806.
Whether doing away with the filibuster for judicial nominations (or for everything else as well, as the article Ijust discussed in TNR advocates) is a good idea or not is of course debatable. One argument in favor of retaining the filibuster that has some traction among Republicans is this one from John McCain:
I say to my conservative friends, some day there will be a liberal Democrat president and a liberal Democrat Congress. Why? Because history shows it goes back and forth. I don’t know if it’s a hundred years from now, but it will happen. And do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?
This argument from McCain (and a similar one by George Will) would carry more weight if McCain had ever supported a filibuster against a too liberal Democratic nominee.
“I say to my conservative friends, some day there will be a liberal Democrat president and a liberal Democrat Congress”
its interesting, there used to be other protections in judicial nominations afforded to the minority party when the left was in charge. the wingers came in and undid those as they stood in their way. And they will reap what they have sown.
The inscrutable one has spoken. And while we are pondering the words of wisdom from actus, here is another conundrum for us to consider. Why do people who have nothing but contempt for religion, quote scripture?
“Why do people who have nothing but contempt for religion, quote scripture?”
I love scripture. Its the people who try to use to run my life that are the problem.
Well (well, almost well) said, actus!
I love scripture. Its the people who try to use to run my life that are the problem.
Or in the famous words of Linus (from Peanuts) “I love mankind, it is people I can stand”.
“Or in the famous words of Linus (from Peanuts) “I love mankind, it is people I can stand”.”
Only if you understand my words to mean something other than what I said. Something other than what what they mean.
I forget which Democratic Senator (was it Schumer?) was on “This Week” last Sunday arguing that, sure, the Senate can change its own rules, but that the rule change itself has traditionally required a supermajority vote. If true, that’s certainly a consideration.
I’m with George Will on this one, and largely for his reasons: Anything that makes it easier for a Congressional majority to do whatever it wants to do without compromise is objectively a bad idea. Motivated Congressional majorities left to their own devices generally make a hell of a mess. (Granted, they’re pretty dreadful even when they do compromise, since the compromises generally involve copious servings of pork for the minority party, but there’s less actual damage.)
Michelle – I suspect Schumer’s point was a truism (which may be about as close to the truth as he gets): that traditionally any effort to change the filibuster rule could be filibustered.
I’m not sure where I come down on the substance of this matter. I will say that the 1995 proposal of Sen. Harkin (and of others at other times) to have something like progressive cloture makes some sense to me: requiring a two thirds vote to close debate initially followed by progressively smaller vote requirements over time until (perhaps after a certain amount of time) by the 4th attempt or so a simple majority will do.
The Democratic side of the current argument is sullied, for me, by the argument the Democrats make. It would be honest and honorable for them to say we oppose these judges because we think they would make decisions of which we disapprove. It is neither honest nor honorable to claim the nominees are “out of the mainstream.”
John,
Schumer (if it was he, and as I say, I don’t remember) didn’t say that rule changes could be filibustered, and I don’t think that’s what he meant. It sounded as though he was talking about an informal but traditional supermajority for changes of Senate rules, different from the filibuster-closing supermajority and historically separate from it.
I personally want to see a return to the days when a filibuster could be kept going only by actually speaking, and it came down to a test of stamina. I can’t say that I cared much for the late Strom Thurmond on ideological grounds, but a dude who could harangue the Senate for 24 hours without stopping is a kind of marvel of nature. Legend has it that an aide stood just outside the Senate chamber with a pail so that he could pee into it occasionally and not have to leave the Senate floor to relieve himself, which would have closed the filibuster.
I really don’t think ditching the filibuster is a good idea in the long run, even though all the judges being blocked are judges I’d be happy to see confirmed.
But this —
The Democratic side of the current argument is sullied, for me, by the argument the Democrats make. It would be honest and honorable for them to say we oppose these judges because we think they would make decisions of which we disapprove. It is neither honest nor honorable to claim the nominees are “out of the mainstream.”
— this I agree with. A “mainstream” that includes the likes of the majority of the Ninth Circuit but not Miguel Estrada is interestingly skewed.
Another sub-nuclear option
(A previous sub-nuclear option here.) How about a declining vote requirement for cloture? Right now, it takes 60 votes to cut off a Senate filibuster. Under this plan, should it…
Re Actus’ comment about one day there will be a liberal congress. There may be a liberal president but not a liberal congress. That day is far in the future, decades in the future and by that time no one will remember what happened in the past. The fact is that whites are getting more conservative and so are hispanics. That leaves blacks and a shrinking group of whites to vote liberal.
Re Actus’ comment about one day there will be a liberal congress. There may be a liberal president but not a liberal congress. That day is far in the future, decades in the future and by that time no one will remember what happened in the past. The fact is that whites are getting more conservative and so are hispanics. That leaves blacks and a shrinking group of whites to vote liberal.