May 03, 2005

Extended Debate On The Big Blogs

An earlier post on "dull-witted, bovine majoritarianism" provoked enough pawing of dust and stampede-like activity in the Comments section to make some further remarks about the Senate filibuster as it applies to judicial nominations seem worthwhile.

Glenn Reynolds and Mickey Kaus have been having a back-and-forth on this subject. Glenn took it up after an earlier discussion on the Tigerhawk blog.

Tigerhawk's original suggestion was that Senators threatening extended debate on a judicial nomination (or, presumably, any other matter before the Senate) should be required to put up or shut up. That is, the Senate would not proceed to other business and let the nomination threatened with a filibuster hang, but would force those Senators who wanted to talk the nomination to death to do so. Glenn mostly agrees with this; Mickey hems and haws in the manner with which regular readers of his will be familiar, and finally declares his belief that a genuine filibuster would work to the advantage of the minority Democrats. This conclusion I regard as obtuse and wrong, for reasons I'll explain in a moment.

At the core of this dispute is Senate Rule XXII, regarding precedence of motions, which lays out the rules for ending debate "...upon any measure, motion, other matter pending before the Senate." The procedures outlined in Rule XXII are arduous, but genuine extended debate is much more so. First, it requires a filibustering senator or senators to talk for long periods of time, relieving one another by means of one Senator yielding to another without the first Senator losing his right to the floor. In the current situation, since Democrats have more than enough votes to defeat a motion to limit debate, Senators might keep a filibuster going by serially seeking recognition from the chair in the usual way.

A real filibuster also requires a quorum in the Senate, 51 members for this purpose. Theoretically one or two Democratic Senators could hold the floor while 49 Republican Senators had to sit there and listen to them. Business in the Senate is routinely conducted without a quorum, but only by unanimous consent. Without a quorum any member can "suggest the absence of a quorum," requiring the roll to be called and absent Senators summoned -- in other words, a delaying tactic that could give filibustering Senators a break. Jeffrey Toobin in his recent New Yorker article "Blowing Up the Senate" quotes a Republican Senate aide on the reasons Republican Senators don't want to force a genuine filibuster

"The Democrats could keep one or two of their people on the floor, talking all night, and they could request a quorum anytime they wanted. We’d have to keep fifty-one of our people there all night, and our people wouldn’t do it. Some of them are old. Some are sick. And it wouldn’t break the filibuster anyway. That’s why the filibuster is so effective.”

In my previous post on this subject, I noted that there are 16 Republican Senators in their late 60s or older; 12 of them are past 70. Of course, age and infirmity aren't the only factors here. Toobin's Republican aide neglected to mention that most Senators have fundraisers and receptions scheduled every night they are in Washington while Congress is in session, even better reasons as they see it not to have to stay near the Senate floor. As well, most recently elected Republican Senators came to the Senate from the House -- not the pre-1994 House, where Democrats had all the power and Republicans were an afterthought. Their experience has been instead in the GOP House, where Republican members vote the way the leadership tells them to and always win if they stay with the herd, ah, if they stick together. It's what they are used to, and they like it.

Add to that the fact the Senate Majority Leader Bill Frist is not Howard Baker or Bob Dole. He is anxious, almost desperate actually, to be viewed as President Bush's man in the Senate, seeing this as crucial to a future bid for the Republican Presidential nomination. Frist has been given his instructions: the White House wants all its judicial nominations confirmed, without hassles. All these factors together explain Senate Republicans' support of changing Senate rules to limit debate on nominations.

But in fact forcing the Democrats to mount a real filibuster of an appeals court nomination would effectively discourage future threats of extended debate on all but the most vital issues. In the first place, to most Americans a seat on an appeals court is just another judgeship. Of course the organized interest groups driving this controversy see things quite differently, but bringing Congress to a halt over one judgeship is bound to appear excessive to the general public. Second, the famous filibusters of an earlier era took place off-camera; that Republican aide's gloomy scenario of one Democrat talking endlessly while a quorum of Republican Senators waited to do Senate business would make for terrible visuals -- for the Democrats. They would need to hold most of their Senators on the floor to avoid having it appear that they were just goofing off, and this inconvenient requirement would undermine the unanimity within the Democratic caucus that filibustering a nomination requires.

Third, Democratic Senators' heavy reliance on "the groups" (as Zell Miller calls them) to help them decide which nominees to filibuster is a point of vulnerability that can be attacked during the course of the inevitable marathon media coverage, if not on the Senate floor then off it. Some of the ten nominees theatened with filibuster are more presentable than others; the first attempted filibuster -- the one that matters in shaping public perceptions -- would be bound to focus on the one nominee being blocked, rather than the other nine whose nominations are not being considered. The image of Senators blocking a qualified, inoffensive-looking nominee at the behest of vocal interest groups whose talking points a filibuster would require them to repeat over and over on the Senate floor is not an appealing one. If it could be conjured up once, the allure of additional filibusters would be greatly reduced. And even a successful filibuster, if forced to continue long enough, would be an unpleasant enough experience that Senators would hesitate before starting another one.

This could be an important gain for the Senate as an institution. The threat of extended debate, sometimes on measures of minor importance, has long made the conduct of Senate business more difficult. Using this threat Senators of both parties have been able to delay or block legislation -- and now, nominations -- at no cost to themselves, because their bluff was never called. This is an abuse of the Senate's tradition of unlimited debate; it started to undermine the comity essential to the Senate's functioning as it was intended long before the current era of thoughtless, interest group-driven partisanship began.

The White House alternative that Senator Frist is trying to scare up votes for does not and isn't intended to do anything for comity in the Senate, or the efficient operation of the Senate, because the White House only cares about what the President wants right now. Its effect would be to make the Senate more like the House of Representatives, which one might think would be appalling to men who spent years of their lives trying to escape the House and get elected to the Senate. As noted above there are Senators to whom the easy life of a corn-fed Congressman is something they actually want to bring with them to the north side of the Capitol. I doubt that they can be argued out of that.

But if there are arguments against forcing a genuine Senate filibuster, they shouldn't include the idea that it would damage Republicans more than Democrats. In American politics the onus of explaining any unusual, awkward-looking step is almost always on the people playing offense -- the people who are trying to change customary procedure. During the government shutdown of 1995, it was the Gingrich-led House Republicans; in a debate over changing Senate rules on the filibuster, it would be the Senate Republicans. But in an actual filibuster over a single nomination it would be the Democrats. Provided the nominee in question is not a raving nut case (yes, I do know this is obvious. I'm just saying), a genuine filibuster would make the Democrats look like petty, group-driven obstructionists even if they won, and would be such an ordeal most Senators would shy away from inviting another one.

Posted by at May 3, 2005 09:59 PM | TrackBack (8)

Let's just go back to the way Rule XXII was before 1975, 2/3 of members present and voting for cloture. This is the present rule for Treaties. What's more important a Treaty or an appellate court judge.

Posted by: Dave at May 4, 2005 01:24 AM | Permalink to this comment Permalink

Great post. I've had similar thoughts for some time now.

A couple of things. It isn't really about what is more important. The Constitution sets that specific requirement to ratify treaties but not for judges. It would also be a rule change that would be demagogued by the minority. The rules don't need to be changed when the old ones suffice, if they are adhered to IMHO.

Posted by: Chris at May 4, 2005 07:21 AM | Permalink to this comment Permalink


I suggest you go read your Constitution, because the "rules" you refer to do not discuss restrictions on debate. There is no limitation on any debate under the current Senate rules other than the cloture rules, and pretending that the Constitution required only 50 votes to cut off debate on judicial nominees is pure nonsense --- the kind of rewriting of laws through interpretation that the right wing supposedly objects to.

Indeed, if the GOP does this, I see a day when Congress with a democratic majority removes Bush's judges from the bench because they got there unconstitutionally. Remember, under the constitution the process is "advice and consent" of the Senate, and there is no evidence that Bush sought nor obtained the "advice" of the Senate before nominating the judges in question.

Its obvious that the wingnuts have descended into megalomania --- suddenly, the same right wingers who denied Clinton's nominees a hearing in the judiciary committee are demanding that every nominee receive an "up or down vote". Clinton's judges were NOT EVEN CONSIDERED IN COMMITTEE, let alone sent to the floor of the Senate for confirmation --- an abuse of power by the GOP that pales in comparison to the issue of the filibuster.

Posted by: p.lukasiak at May 4, 2005 12:54 PM | Permalink to this comment Permalink

"Clinton's judges were NOT EVEN CONSIDERED IN COMMITTEE, let alone sent to the floor of the Senate for confirmation --- an abuse of power by the GOP that pales in comparison to the issue of the filibuster."

First, this was not the case for Clinton's appointees at the appellate level. Second, there's historical precedent for denial without consideration at the committee level. So next time you read the Senate Rules or the Constitution, please note that rules were not being broken in the handling of Clinton nominees.

Also, when you are reading the Constitution (again), please note for me where it demands that the President seek advice and consent of nominees PRIOR to nomination.

Posted by: jd at May 4, 2005 01:25 PM | Permalink to this comment Permalink

The question would become -- would the Democrats rather appeal to their interest groups, which will keep them financially afloat during their years of minority status -- or the people, who may forget in 2006 how marginally annoyed they were in 2005.

It's a calculation and a gamble that this would work.

Posted by: Appalled Moderate at May 4, 2005 05:12 PM | Permalink to this comment Permalink

AM: Yup, it is. It would require preparation and coordination among GOP Senators too. Really, though, the impact of this gambit on the 2006 election isn't what would make it effective (most Senators aren't even up then). Instead, negative media coverage and the sheer physical ordeal would be the deterrents against routine filibuster threats.

Do I think Republican Senators would actually do this? No, for all the reasons I list in the post. Most of these guys either see their Senate seat as a way station to national office or as the top of their personal greasy pole; their commitment to the Senate as an institution is weak. Having said that I do think that there are enough GOP Senators who don't think a few appeals court judges are worth changing the rules to put the "nuclear option" in doubt. If Frist knew he had the votes he'd have moved by now.

Posted by: JEB at May 4, 2005 05:35 PM | Permalink to this comment Permalink

You state:
In the current situation, since Democrats have more than enough votes to defeat a motion to limit debate, Senators might keep a filibuster going by serially seeking recognition from the chair in the usual way.

What happens if the chair does not recognize the yielding of the floor to another senator? Can the filibuster be broken by requiring one senator to do all the talking?

Posted by: robert at May 4, 2005 06:05 PM | Permalink to this comment Permalink


I have always seen being an elected official in Washington as being an obnoxiously hard job, because of all the after-hours fundraising and phone calling that's required. (This actually has alarmed me, because I figure the only people who would put themselves through it are warped and damaged personalities, or fanatics) You make it sound as if the job need not be that difficult. Do I need to re-learn some of my civics lessons?

Posted by: Appalled Moderate at May 4, 2005 06:47 PM | Permalink to this comment Permalink

...the original post and subsequent comments seem to veer away from the fact that the people involved in this spitting match are ideologues, no more concerned with the Constitution, or you and I for that matter, than the original imaginary friend for adults, God.

Instead, these folk want what they want, at whatever the cost, all else be dammned.

Next time you get the chance, make sure your vote counts.

Posted by: Doc at May 4, 2005 07:02 PM | Permalink to this comment Permalink

Seems to me that the rules ought to require that, once there are 50 votes, the cloture issue turn around so that it takes 40 affirmative votes to avoid it. Hence, once the GOP gets 50 votes, the Democrats can keep talking as long as they have 40 affirmative votes to keep talking, instead of the absence of 60 votes to cut them off.

That way, there remains the filibuster with 40 votes, but it is the Democrats (the filibusterers), rather than GOPers, who need to stay up all night while they talk.

Never happen, though.

Posted by: Al at May 4, 2005 07:39 PM | Permalink to this comment Permalink

First, this was not the case for Clinton's appointees at the appellate level.

LOL! In other words, the GOP let Clinton get away with appointing appellate judges it found objectionable, but not district court judges, because of some principle involved? I mean, get serious....

Also, when you are reading the Constitution (again), please note for me where it demands that the President seek advice and consent of nominees PRIOR to nomination.

the point here is that if the GOP is going to change the rules by finding completely ridiculous "constitutional" provisions, the Democrats will have no reason to feel any compunction about doing likewise when it suits them.

Posted by: p.lukasiak at May 4, 2005 08:29 PM | Permalink to this comment Permalink

Taking questions and points in order:

Robert: A Senator holding the floor may yield it to another Senator for a specific purpose, usually to ask a question or submit into the Record a statement. Whether he does so or not is up to him, not to the chair. If no Senator has the floor, the chair may recognize any Senator seeking it, though by custom the first Senator asking for the floor gets it unless the Majority or Minority Leaders are also doing so.

The point about the size of the Democrats' minority is simply that in a normal, genuine filibuster the number of filibustering Senators is not large enough to defeat a cloture motion cutting off debate. If you lose the floor, the other side can get it and offer its motion. In the present case, if cloture were voted on it would lose, so there isn't any point in forcing just one Senator to hold the floor. The Republicans' objective, actually would be to force the Democrats to keep talking for days, counting on the public spectacle to serve their purpose.

AM: There are twisted personalities in politics as in any line of work, but most of the people I'm talking about are nothing of the kind. They like people (as I do), like helping their friends (as I do) and even enjoy raising money (which I'm not sure I could do on a very large bet). Where most of them fall short are on ability, knowledge, and above all commitment to the institution -- which after all has been around for over 200 years and is central to our whole system of government. It's hard work, and mostly above-the-shoulders hard work that is the hardest kind, to set all the usual political tasks aside and just do Senate business. Congressmen these days, who almost all have safe districts and fewer responsibilities than Senators, do have things a lot easier.

Doc: Ideologues, schmideologues. That's the line the interest groups, on both sides, are pushing. Never, ever assume that any of these groups is on the level -- not that they never are, but all of them have imperatives in terms of their fundraising, public image and clout in Washington that require them to present every issue in its starkest terms. There's a word for people who believe every word they hear from these groups: suckers.

Posted by: JEB at May 4, 2005 08:36 PM | Permalink to this comment Permalink


...sorry, i wasn't clear. i did not mean that the folk involved were not aherents of particular, well defined principles: just that those principles had nothing to do with governance.

Posted by: Doc at May 4, 2005 08:51 PM | Permalink to this comment Permalink

Excellent. To a great degree, the "nostalgia option" would be more interesting to Republicans if the Senate Majority Leader were a different man. Bill Frist does not understand what George Bush obviously does -- the value of intransigence. If the Republicans reverted to the traditional talk-til-you-drop filibuster, they would grab the public relations high ground in a hurry. True, they would have to steel themselves for perhaps one ugly and tiring week, but in the end the public would turn against the Democrats as you suggest. If that happened, it would be the gift that keeps on giving: not only would the Republicans harvest a rich crop of Democratic gaffs that could be replayed constantly during the next election cycle, but the Democrats' image as the party of whiners would be tremendously reinforced.

Posted by: TigerHawk at May 6, 2005 03:58 AM | Permalink to this comment Permalink

Well, I agree with your first point, but some people are intransigent because they understand the value of this quality and some are intransigent because they don't know how to operate in any other way.

As you probably figured out, one of the attractions for me of forcing a genuine filibuster is that it could resolve the impasse over nominations by using the Senate's rules rather than by changing them. How the impasse is resolved substantively -- that is, how many of Bush's blocked nominees get confirmed -- doesn't matter that much to me.

Incidentally, TH, you deserve a lot of credit for raising the subject in the first place. Senate rules are not an easy subject to translate into layman's English, and I'm pretty sure Reynolds and Kaus wouldn't have picked up on this idea if you hadn't laid it out first. Well done.

Posted by: JEB at May 6, 2005 03:37 PM | Permalink to this comment Permalink

Thanks for the kind words. For what it's worth, I agree entirely with your second paragraph. Since I am both pro-choice and root for the repeal of Roe v. Wade, I am also quite ambivalent about the substantive confirmation decision.

Posted by: TigerHawk at May 6, 2005 07:37 PM | Permalink to this comment Permalink
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