Everything you ever wanted to know about the filibuster

I've spent a few minutes canvassing the blogosphere to put together a summary of comments on the filibuster. At the top of the list is Max Baucus' retort to Santorum. Via Think Progress, This is the Way Democracy Ends:

It was not the abolition of the Senate that made the emperor powerful. It was the Senate's complete deference.

Like the Roman Senate before us, we risk bringing our diminution upon ourselves. We risk bringing upon ourselves a hollow Senate, a mere shadow of its past self. And we risk bringing upon ourselves a loss of the checks and balances that ensure our American democracy. ...

Mr. President:

This is the way democracy ends;
This is the way democracy ends;
This is the way democracy ends;
Not with a bomb, but a gavel.

More in Extended Entry

Mark Schmitt highlights the flip side of the filibuster at the Decembrist, Why they went nuclear:

I believe that one reason -- not the only reason, but an important one -- that this particular fight has become so bitter and so polarizing is exactly that fact, that so much of the Senate's business is now run through the rubber-stamp, party-line process of budget reconciliation. (Including pure policy decisions whose budget impact is incidental, such as opening the Arctic National Wildlife Refuge to oil drilling.) Much of the rest is pushed through using the bizarre technique of rewriting legislation from scratch in small, tightly controlled conference committees, and then forcing the Senate to pass it or not, without amendment.

Mark also wrote a thoughtful piece on The Fortas Filibuster and Janice Rogers Brown:

in the end it turns out that the Senators filibustering are not in fact projecting a minority, but a majority.

But it can't happen without the right of unlimited debate. With limited debate, even if it's 100 hours, it's a rubber stamp. The media would assume it's a done deal, the Senators would assume it's a done deal, Barbara Boxer and Russ Feingold would consume a few hours of floor time talking about Brown's views while the other Senators went off to fundraisers, and then they would give up and let it go to a vote. It's exactly what happens on the budget reconciliation bills, where time is limited and filibuster prohibited. The vote coming out is exactly the same as the vote going in.

But the filibuster changes things, especially if the Republicans force a real filibuster and not the old tactic of taking a test vote and pulling the bill/nomination if it doesn't get 60. A filibuster on Brown, or the similarly disturbing Priscilla Owen, would be highly dramatic, uncertain. Senators would stay and listen. They would know that their vote would be noticed. And under those circumstances, some number of those Republicans are not going to want to have their reputations associated forever with someone who doesn't seem to know the difference between FDR and Lenin.

This is a good day to visit Salon and view a thirty second web ad to get a day pass. An excellent overview is Everything you wanted to know about the "nuclear option": If the Republicans are as good as their word, it's going to be much uglier than you think.

Salon also provides a preview of coming attractions if Republicans succeed in abolishing the filibuster, Here come the judges, again: Miss them the first time around? Meet the seven antiabortion, anti-gay, pro-industry Bush nominees who could rise from the ashes of the filibuster.

Prepare for the not-so-magnificent seven. With Republicans poised to pull the trigger on the nuclear option, President Bush's right-wing nominees ride again.

Their return -- all were blocked in the Senate their first time around -- is propelling the government into a crisis, as they prepare to take seats in federal appeals courts, the second highest position in the judicial branch of government, beneath only the authority of the U.S. Supreme Court. Democrats oppose them for their extreme judicial and political philosophy, what they consider a conservative version of "judicial activism."


The authors analyze the judicial philosophy of all seven re-appointees and concludes they are:

Against reproductive rights, workers' rights, prisoners' rights, civil rights, consumers' rights and environmental protections

Salon offers a special counter-point just for NevadaDan, Dump the filibuster!: How I learned to stop worrying and love the nuclear option, that includes supporting links to Slate's Timothy Noah, a longtime liberal objector to the filibuster, an L.A. Times editorial and a piece by Jonathan Chait.

Still, it's not every day that one gets a chance to fix the Senate. Senators like the way the body works; they like that every member, however few people he or she represents, gets to have a say, and they're often unwilling to make any changes in that system. Others on the left have recognized that the nuclear option gives Democrats a once-in-a-lifetime chance to rewrite the rules in their long-term favor. Besides Slate's Noah, the L.A. Times has supported the move, as has Jonathan Cohn in the New Republic. It may not be an easy pill to swallow right now -- but imagine having 52 Democratic senators one day, a Democratic president, and the chance to nominate a real liberal to the Supreme Court. And imagine, too, the Republicans not having any power to stop you.

It's a delicious thought.

Salon also has a short Frist smackdown Defusing Frist: Senate Majority Leader Bill Frist took the stage with a preacher who equated liberal judges with the Ku Klux Klan, moderate senators worked around the clock to avert the nuclear option, that includes a look at the compromise efforts to avoid a final showdown.

Bob Brigham was kind enough to provide a compilation of Kagro X's complete series which looks intimidating, but can be easily skimmed in 20-30 minutes.

For filibuster policy wonks Kagro X provides an extensive and scholarly history of the Senate Rules on the filibuster, Notes on the Nuclear Option -- Part XVII that concludes:

At bottom, the 1987 example is no different from the 1980 example, in that it was executed entirely within the acknowledged framework of the rules, whereas the nuclear option depends on convincing the supposed arbiter of the rules to cheat on the majority's behalf.

And that's what separates all of Byrd's maneuvers from the nuclear option. Byrd played hardball, but he never asked the Vice President to cheat and do his dirty work for him. When Byrd ran the Senate, Senators had to shoulder that burden directly.

If your eyes haven't glazed over yet, Kagro X wrote a definitive smackdown on the conservative claim that the Constitution requires an up or down vote, Notes on the Nuclear Option -- Part XVI.

Don't leave The Next Hurrah without checking out Head Counting the Nuclear Option Vote by DemFromCT:

This one's just for fun. Yesterday, an AP article suggested the seven R non-committeds were:

Sen. Lisa Murkowski, R-Alaska, Sen. Chuck Hagel, R-Neb., Sen. John Sununu, R-N.H., Sen. Arlen Specter, R-Pa., Sen. John Warner, R-Va., Sen. Susan Collins, R-Maine, Sen. Mike DeWine, R-Ohio.

That's the best of the web that I ran across. Anything else is frosting on the cake.

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Comments

16 Comments

The Theocrats caucus on the nuclear option
Hat tip to Seeing The Forest.

An inside look at the negotiations over the nuclear option by Corrente.

by Gary Boatwright 2005-05-21 08:22AM | 0 recs
A critque of filibuster news coverage from the M$M
The incomparable Somerby at the Daily Howler summarizes journalism malpractice from the M$M, FAR FROM HEAVEN! When will Liberal Oasis learn--that our big orgs are next door to perfect:

FAR FROM HEAVEN: We can all feel especially lucky. We're lucky because, as it turns out, our big newspapers aren't "pieces of crap" after all; in fact, they represent "the current state of the art in human perfectibility." (Well, at least the New York Times does. See THE DAILY HOWLER, 5/20/05.) And if they weren't the next best thing to perfection, think how bad their coverage would be--of Priscilla Owen, for example.

With that in mind, be sure to read this report in Liberal Oasis--a report critiquing Thursday's profile of Owen in the Los Angeles Times. We chuckled to think that the folks at Oasis didn't realize what Blogger Pangloss explained--that they're only "enabling the right-wing agenda" when they pen such thoughtless critiques.

Somerby's link to Liberal Oasis, The L.A. Times Hearts Priscilla:

Former Texas Observer editor Lou Dubose laid out the stark details of the case in Salon last week.

Searcy became a "ventilator-dependent quadriplegic" in 1993 after a car accident where his Ford Motor Co. seatbelt malfunctioned. His family desperately needed money to properly care for him, and in 1995 a jury determined Ford must pay them $40M.

But Willie never saw a dime, and in turn, never got the quality of health care he needed to stay alive. After the initial ruling, Ford went to an appellate court, delaying the payout. A year later the award was reduced to $30M.

Then Ford went to the Texas Supreme Court, and Owen was responsible for the case. Owen, who received $20K in campaign cash from a law firm that represented Ford, slow-walked the case, leaving Willie hanging. She waited two years to rule, even though both sides requested a expedited hearing.

And her ruling dragged out the case further, calling for a retrial in a different appellate court, even though, as Dubose noted, "venue was not among the issues ... the court said it would consider two years earlier..."

Three years later, the second appellate court finally ruled in the family's favor. Four days after that, Willie died.

Which brings us full circle to Salon, Willie's story: Less known but just as telling as Priscilla Owen's abysmal abortion-rights record is her unconscionable handling of a case that may have cost a young man's life.

Digby clarifies conservative priorities with an explanation of the culture of life.

by Gary Boatwright 2005-05-21 08:51AM | 0 recs
A Cool Compromise
Kevin Drum has a suggestion for the Democrats who are seeking a compromise to avoid the nuclear option:

The judicial filibuster is indeed an obstruction of last resort. But I'll repeat a deal I've suggested several times over the past couple of years, most recently in January: return all the other rules to the state they were in when Bill Clinton was president and Democrats would probably be willing to forego use of the filibuster. Republicans have no one but themselves to blame for the current game of nuclear chicken they find themselves in.
by Gary Boatwright 2005-05-21 09:02AM | 0 recs
one more important bit of info
You quoted from Mark Schmitt,
in the end it turns out that the Senators filibustering are not in fact projecting a minority, but a majority.
... which hints at something I wish was being mentioned more in coverage and debate about this.  So I'll lay it out here again, explicitly.

If you count each Senator as representing half the population of their state (since each state gets two Senators, elected statewide),

    Democratic Senators represent 165.2 million people
    Republican Senators represent 136.3 million people

(I did these numbers myself, with 2000 census state population figures and a perl script)

If you look at the votes case for all Senate races in the three elections that determined the current makeup of the Senate - 2000, 2002, 2004 - and add them up,

    99.7 million people voted for Democratic Senators
    97.3 million people voted for Republican Senators

Even in the 2004 election, supposedly the big decisive shift toward Republican domination, significantly more votes were cast for Democratic Senators than Republican Senators: 52.4% to 47.6%.  
Barbara Boxer alone got almost 7 million votes, millions more than any other Senate candidate in the country. (I got the vote counts from cnn.com and added them up with perl scripts)

Democrats in the Senate represent a majority!

(I'm counting Jeffords as a Democrat, though Vermont is tiny enough that he doesn't affect the numbers much anyway)

by cos 2005-05-21 01:36PM | 0 recs
Additional updates
Carpetbagger analyzes the latest word on the compromise of the moderates from WaPo:

I know this is getting repetitive, but consider the give-and-take as part of this "compromise." A majority of the offensive judicial nominees would take lifetime positions on the federal bench, and Dems would give up on blocking future nominees who may be just as radical (if not more so), and they'd agree not to block Supreme Court nominees, except for the painfully vague "extraordinary-circumstances" exception.

In return, Dems will get to keep a procedural tactic they already have, which Republicans have used in the past, and which Dems promise not to utilize until 2007.

I'd be funny if it weren't so ridiculous. Like Matthew Yglesias, I believe it's starting to sound like these "centrist" Dems have lost sight of the sight of the goal here: we want to keep unqualified jurists off the federal bench.

I know I'm having a lot of difficulty seeing what the Democrats are gaining and what the Republicans are giving up in this "compromise."

The Carpetbagger also digs up speculation that Frist does not have the votes:

I'm not convinced that the New York Daily News is the most reliable outlet in the country, but this anecdote, if true, is of the utmost importance right now:

Some Republicans at the White House and on Capitol Hill aren't sold that Majority Leader Bill Frist (R-Tenn.) has the 50 senators needed to change the Senate's rules and end filibusters on judges.

"That's what we keep hearing: that Frist doesn't have the votes," said one well-informed GOP aide. "If he doesn't have the votes, then that will force him into some sort of agreement."

Stirling Newberry over at Bloggiing the President answers Farhad Manjoo's Salon article and Farhad responds, Blocked Arteries. This is an excellent exchange of views, with both sides making strong arguments. Newberry starts off:

Farhad Manjoo supports ending the filibuster for the same reason poor people vote for tax cuts on rich people. One day, this largess might be yours.

There are three problems with this argument.

I was doing some catch up on my favorite economics blogs, and ran across Brad DeLong's look at the likely scenario on Tuesday from WaPo, via Pendragon Why Oh Why Are We Ruled by These Idiots? (Republican Senate Edition). DeLong's conclusion:

A precedent will be set that it takes 51 votes to change the rules of the Senate in a direction that the Senate majority leader wishes.

It would be one thing for Frist to get 67 votes to change the Senate rules so that 51 votes closes debate on a judicial nomination. This is something very different: a declaration that no matter what the rules have been, the Senate will pretend that the rules are whatever the majority leader can get 51 votes for.


by Gary Boatwright 2005-05-21 02:37PM | 0 recs
Wow
"Mr. President:

This is the way democracy ends;
This is the way democracy ends;
This is the way democracy ends;
Not with a bomb, but a gavel."

Maybe my appreciation for T.S. Elliot is getting the best of me, but that's pretty damn accurate.  And scary.

by bellarose 2005-05-21 03:15PM | 0 recs
Interesting
The phrase rang a bell, but I couldn't make the connection. Do you have a link to the original reference?
by Gary Boatwright 2005-05-21 06:13PM | 0 recs
Yep

http://www.cs.umbc.edu/~evans/hollow.html

It's the end of "The Hollow Men"

For Thine is
Life is
For Thine is the

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.

by bellarose 2005-05-21 06:51PM | 0 recs
Not with a bang but a whimper!
Jeesh! I can't believe I missed that. It's been a long time since I read T.S. Elliot:

Those who have crossed
With direct eyes, to death's other Kingdom
Remember us -- if at all -- not as lost
Violent souls, but only
As the hollow men
The stuffed men.

That's powerful.

by Gary Boatwright 2005-05-21 07:26PM | 0 recs
A comment from a new progressive source
I was listening to Air America and heard an interview of one of the contributors to Progressive Populist. The interview was about a filibuster article, Be Careful What You Wish For. It's based on a Matthew Yglesias post, Once More On The Rules:

That's a big deal, and it's not clear to me that anyone should welcome it. But if anyone should welcome it, it probably ought to be liberals, who at least on one level stand to gain in the long term from anything that makes it easier to pass laws. Why conservatives would want to embark on the road for the sake of a pretty trivial win -- the confirmation of 10 judges, some of whom compromise-minded Democrats would be willing to confirm if the nuclear option were taken of the table -- is a bit beyond me. Bill Frist wants to do it because he desperately wants the support of the "Justice Sunday" crowd (a group that, to put it politely, tends to lack a broad perspective) for his presidential campaign. Most everyone else seems to me to be caught up in the hype and not thinking clearly about this.

It looks to me like Matt is the one not thinking clearly. I've read articles by liberals who are concerned that Bush would make Scalia Chief Justice. There would be a high cost and very little gain to a Scalia elevation to Chief Justice. I think Judge Roy Moore is a more likely candidate to replace Rhenquist.

It strikes me as incredibly naive to assume Bush and Frist plan to stop at elminating the filibuster. In pure political terms, once they play the nuclear option, Republicans would be foolish not to stop "Democratic obstructionism" of privatization and Bush's upcoming tax reforms and elimination of the estate tax.

I'm more in agreement with Norm Ornstein at AEI, These Five Senators Know Better Than to Go Nuclear. Don't They?:

Rule XXII is clear about extended debate and cloture requirements, both for changing Senate rules (two-thirds required) and any other action by the Senate, nominations or legislation (60 Senators required). 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.    
                                         . . .      

By invoking their self-described nuclear option without changing the rules, a Senate majority will effectively erase them. A new precedent will be in order--one making it easy and tempting to erase future filibusters on executive nominations and bills. Make no mistake about that.

The precedent set--a majority ignoring its own rules to override longstanding practice in one area--would almost inexorably make the Senate a mirror image of the House, moving the American system several steps closer to a plebiscitary model of government, and the Senate closer to the unfortunate House model of a cesspool of partisan rancor.

If Frist can pull of abolishing the filibuster, the Democratic party would be transformed from a political party into a political debate society. There wouldn't even be much point in showing up.

by Gary Boatwright 2005-05-21 07:14PM | 0 recs
thanks for the plug
Kagro's a wonder (but on vacation this week). Don't miss RonK's Failsafe Option on how things might go to the brink... and be pulled back.

Frist starts the process by asserting that debate on the Owen confirmation has become dilatory and constitutionally impermissible.

Cheney (presiding) rules in Frist's favor.

Reid raises a point of order that this is a constitutional question, and is therefore debatable (and subject to filibuster).

Cheney rules against Reid's point of order.

Reid appeals the ruling of the chair.

Frist makes a non-debatable motion to table Reid's appeal.

In the "main sequence" Nuclear Option scenario, Republicans then either muster 50 votes to table Reid's appeal (proceeding to the confirmation vote), or Reid musters 51 votes (defeating the motion to table the appeal), and prevailing on the appeal with the same 51 votes (preserving the filibuster and the tradition of rulefulness in Senate proceedings). But at this juncture, there is an alternative.

With the aid of six GOP "prudent defectors", Reid can win his appeal of the ruling of the Chair (as above). Debate on the underlying constitutional question ensues.

Reid can forestall the vote on this question indefinitely, by filibuster, but he can't defeat it or make it go away -- except with support of six Republicans.

If one or more of the Six withholds this support, the Senate remains in a true "Mr. Smith" filibuster, with neither side disposed to yield.

by DemFromCT 2005-05-22 02:05PM | 0 recs
Re: thanks for the plug
Allow me to add a favorable comment from the Decembrist on RonK's contribution:

Back From the Nuclear Brink

The good folks at The Next Hurrah blog continue to be like the RAND Corporation of the 1950s or Herman Kahn's original Hudson Institute: constantly gaming out possibilities and the moves several steps ahead for all aspects of the Nuclear Option.

The contributor who signs himself RonK, Seattle (who is also a frequent and welcome commentor here) has a very good insight into the "failsafe" option, one that ought to be giving Bill Frist nightmares.

Mark's analysis is superb as usual. Money quote:

But if "extraordinary circumstances" is coupled in a deal with an agreement to let either Priscilla Owen or Janice Rogers Brown's nominations go through, then it is totally unacceptable. That's because in that combination, Brown or Owen would come to define the line of "extraordinary circumstances." That is, assume Brown goes through -- after that, anyone with views less extreme than Brown would implicitly be considered not extraordinary. Bush could name Brown herself to the Court and Democrats would be paralyzed. And the problem with that is simply that there are no possible nominees to the Supreme Court whose views are more radical than Justice Brown. (I'm open to correction on that, but from what I know of folks like Michael Luttig, Michael McConnell, John Roberts, Edith Jones, and others, none adopt quite as aggressively an activist libertarian position as Brown.)

So I would be happy to see a deal bring this confrontation to a close, but it cannot be a deal that gives Bush a free pass to name anyone he wants to the Court.

by Gary Boatwright 2005-05-23 05:15AM | 0 recs
Knight Ridder update
I finally found a list of the moderate collaborators, Group of senators searches for compromise on judicial nominees:

The negotiators are an eclectic ensemble. Their talks have mostly taken place in the offices of Sen. John McCain, R-Ariz.

They include two of the longest-serving senators, whose presence lends the group great stature in the Senate: Robert C. Byrd, D-W.Va., first elected in 1958, and John Warner, R-Va., elected in 1978. There's also at least one freshman, Ken Salazar, D-Colo.

Other Republicans include Maine's two moderates, Susan Collins and Olympia Snowe; Mike DeWine of Ohio, Lindsey Graham of South Carolina and Lincoln Chafee of Rhode Island.

Among the Democrats are Ben Nelson of Nebraska, Mark Pryor of Arkansas, Mary Landrieu of Louisiana and Kent Conrad of North Dakota.

Byrd
Salazar
Nelson
Pryor
Landrieu
Conrad

The negotiators face two difficulties. First, they must agree on which of Bush's judicial nominees they will let be confirmed without a filibuster. Talks so far have centered on letting four or five of the seven go forward, but no final agreement has been reached.

Stickier is how to deal with future judicial nominees, particularly one for any vacancy on the Supreme Court. Democratic negotiators want to retain the right to use the filibuster in an "extraordinary circumstance," but want Republicans to promise not to support the nuclear option through 2006 under any circumstance.

"The real thing is how do we bring about the trust that the Senate used to operate under," Breaux said. "It has to be based on good faith. But there has to be a mechanism that if people walk away from their agreement," each side is free to vote with their party majority.

by Gary Boatwright 2005-05-22 04:51PM | 0 recs
A couple more for future reference
A Hunter diary at dkos, Apparently you can't filibuster incompetence and a Kevin Drum Wa Po article Hunter links to from January, Resist the filibuster fiat.

Hunter emphasizes a key point that I have only indirectly referenced, Hatch's restrictions on the Blue Slip:

Originally, after Republicans gained control of the Senate in the 1994 elections and Utah Sen. Orrin Hatch assumed control of the Judiciary Committee, the rule regarding judicial nominees was this: If a single senator from a nominee's home state objected to (or "blue-slipped") a nomination, it was dead. This rule made it easy for Republicans to obstruct Clinton's nominees.
But in 2001, when a Republican became president, Hatch suddenly reversed course and decided that it should take objections from both home-state senators to block a nominee. That made it harder for Democrats to obstruct George W. Bush's nominees.

In early 2003 Hatch went even further: Senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it could still go to the floor for a vote.

Finally, a few weeks later, yet another barrier was torn down: Hatch did away with "Rule IV," which states that at least one member of the minority has to agree in order to end discussion about a nomination and move it out of committee.

Hunter also points out how the M$M has consistently ignored Hatch's Blue Slip restrictions. Democrats should be making a bigger deal of the way Hatch has increasingly restricted methods other than the filibuster that Republicans used to block Clinton appointees.

They also should be emphasizing that Rule XXII requires a 2/3 vote to change it. Frist and Cheney will be pretending that any Senate Rule can be changed by a simple majority vote, but they have to ignore both the plain text of Senate rules and Senate procedure to accomplish their goals.

by Gary Boatwright 2005-05-23 04:38AM | 0 recs
Another Drum update
OK, maybe it will never end. I want a record for future reference so I don't have to go search them down again. Monday morning update, Filibuster Philosophy:

But here's the part I'm not sure of. As I understand it, there are two possible theories under which Cheney could rule in Frist's favor:

1.) He could rule that although the 60-vote rule is generally valid, it's unconstitutional in the specific case of judicial nominations. The theory here is that since the constitution states that the president, "by and with the Advice and Consent of the Senate, shall appoint" judges, the Senate has an affirmative responsibility to provide advice and consent. It's unconstitutional to abdicate that responsibility by refusing to vote.

2.) He could declare that the rules of a previous Senate aren't binding on a future Senate. In other words, if a previous Senate decided by a majority vote that 60 votes are required to end debate, the current Senate has the same right by majority vote to overturn that rule.

It strikes me that there are dangers to both approaches for Republicans. For option 1, the danger is an appeal to the Supreme Court. Normally, the Supreme Court is unwilling to interfere with internal congressional rules, but if the presiding officer makes a ruling based on a specifically constitutional interpretation, isn't it possible that they might be willing to get involved? And since this interpretation seems prima facie dubious, it might well get overturned.

For option 2, the danger is that the ruling creates a precedent that applies to all Senate rules. No matter what Karl Rove thinks, it's likely that Democrats will one day control the Senate again, and when they do they could use the exact same theory to wipe out all filibusters and pass legislation willy nilly. Liberal legislation tends to be harder to reverse than conservative legislation, so in the long term this could do a lot of harm to conservative causes.

My guess is option two, because there is no realistic reason to believe Democratic control of the Senate will happen until 2008 at the earliest. Frist and Cheney aren't taking a long term view of this issue. They want a clear playing field for Bush to appoint one to three uber conservative judges to the Supreme Court. If they can stack the court with two or maybe three more Scalia type judges, they lock in an uber conservative majority on the court for twenty or thirty years.

Even with a Democratic President and control of the Senate, any effort to change the composition of the court will depend on additional vacances and take decades, not years. It will depend on vagaries and serendipitous chance that are a low probability concern compared to the immediate short term advanatage.

by Gary Boatwright 2005-05-23 04:55AM | 0 recs
From Surburban Guerilla

Priscilla Owens just rated "poor" by Houston Bar. Awesome catch.
by Gary Boatwright 2005-05-23 05:09AM | 0 recs

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