WP: Will Republicans Go Nuclear?

[Fred Jones]

http://www.washingtonpost.com/wp-dyn/articles/A55429-2005Mar21.html
Will Republicans Go Nuclear?
By E. J. Dionne Jr.
Tuesday, March 22, 2005; Page A17

Harry Reid, the Senate Democratic leader, called an urgent meeting last week with leaders of civil rights, civil liberties, environmental and women's groups. His message: The Senate faces a nuclear winter that could engulf them.

What emerged at that meeting was an order of battle that could mark American politics for years. Reid told the participants that he had learned from friendly Republican senators that Bill Frist, the majority leader, intended to push forward with what has come to be known as the "nuclear option," a fiddling with Senate rules that would block filibusters of judicial nominees.

And Reid warned the groups that the Republican effort to curb the rights of the Senate minority would not stop with judges. If Frist won on judges, Reid predicted, Republicans would be emboldened to roll other legislation through on narrow majority votes.

The battle over the filibuster seems like an insider's game. In fact it is a historic fight over the structure of U.S. government that could affect almost every issue in the public realm.

The details are clear enough: Democrats filibustered 10 of President Bush's first-term judicial nominees while confirming 204 others.

Under current filibuster rules, it takes 60 votes to shut off Senate debate on most subjects. That means that if the Senate's 44 Democrats stay united, they can block Bush's appointees. Republicans say it should not take 60 votes to confirm a judge.

Under the nuclear option, Republicans would use a simple majority to amend Senate Rule 22, the filibuster provision, even though the rule itself explicitly requires a two-thirds vote for any filibuster changes. They would do this by having Vice President Cheney, in his role as president of the Senate, uphold a "point of order" that would have the effect of ending filibusters on judges. And it takes only a majority to uphold a point of order.

If this sounds convoluted, that's because it is a blatant effort to twist the rules and -- this ought to bother conservatives -- ignore the traditions of the Senate.

Reid's argument to the liberal groups is important because it raises the stakes. (Reid wouldn't confirm the substance of the private meeting, though he did not dispute the account offered by other participants.) On the narrow issue of judicial nominations, Republicans might muster a bare majority to overturn the filibuster. But there is genuine worry across the usual political divides that the precedent set on this one issue would be disastrous for minority rights on all others.

Conservatives say that liberals are a strange bunch to be defending the filibuster -- and the conservatives have a point. Liberals fought the filibuster when it was used by the Senate's Southern segregationist minority to stall civil rights bills. I'll acknowledge that when Republicans used the filibuster to obstruct health care reform and other pieces of progressive legislation in the first years of President Bill Clinton's term, I was tempted to support changes in the filibuster rules.

But conservatives who support the nuclear option are utterly unwilling to acknowledge their own convenient change of heart. They defended the filibuster as long as they were in the minority, but would cast it aside now that they have grabbed the presidency and narrow majorities in both houses. The liberals, moreover, never tried to twist the rules to get rid of the filibuster, as the conservatives are doing.

And if the principle at stake is "majority rule," consider that the Senate is, by its very nature, an affront to majoritarian principles. The 52 senators from the nation's smallest states could command a Senate majority even though they represent only 18 percent of the American population.

According to the Census Bureau's July 2004 population estimates, the 44 Democratic senators represent 148,026,027 people; the 55 Republican senators 144,765,157. Vermont's Jim Jeffords, an independent who usually votes with the Democrats, represents 310,697. (In these calculations, I evenly divided the population of states with split Senate delegations.) What does majority rule really mean in this context? If the Republicans pushing against the filibuster love majority rule so much, they should propose getting rid of the Senate altogether. But doing so would mean acknowledging what's really going on here: regime change disguised as a narrow rules fight. We could choose to institute a British-style parliamentary system in which majorities get almost everything they want. But advocates of such a radical departure should be honest enough to propose amending the Constitution first.


Interesting way of looking at the population the Senators represent. I believe the filibuster should remain intact despite the party in power.

[Thiebear]

I thought there were 7 things you could fillabuster. (and fillabuster means actually doing it, not just saying the word).
And the judges were not one of them?

How hard is it to get these people voted up and down on: There has been one judge waiting 12ish? years...

[SnyderShrugged]

I don't understand the fight against an up or down vote at all.

If you want to vote no, then vote no.

Why delay it? Is it fear of political retribution from their constituents?

[Larry]

For folks concerned about historical precident, though, I do understand that the last time the "nuclear option" was used, Democrats ammended the cloture rules to requite a vote of 60 Senators, rather than the previous requirement of 66.

I do like the idea of the fillibuster remaining the way it is, because I like the idea that a minority can defend itself from a majority, if they are willing to dig in their heels and take a stand on the issue.

I'm not a big fan of the tactics being used by either side, right now. What's going on right now isn't a fillibuster. It's a stealth fillibuster.

The D's aren't fillibustering these nominees. They're threatening to do so. The R's leadership doesn't want to shut down the entire Congress (which a fillibuster would do), so they're not bringing the vote to the floor.

Net result: The R's are howling about the treasonous, unconstitutional, anti-american, activest judges, pro-terrorist, gay-loving tactics of the D's by "blocking" a vote which the R's are chosing not to call.

And the D's are getting away with what amounts to a fillibuster, without actually having to pony up and deliver one.

If the R's really cared about this issue, they'd simply schedule the vote, and make the D's put up or shut up.

[SnyderShrugged]

Can't the minority all just vote no, if thats how they feel?

Sorry, I still don't understand not wanting to vote yes or no.

[gbear]

Skin-n-vegas, are you advocating the British style? Recognize that whatever the prime minister wants to happen there pretty much happens. Is that what you want?

Thiebear, think for a second about what you posted. There has been a guy waiting 12 years? So a Clinton nomination hasn't gotten a vote? I know there was one that lasted pretty much through Clinton's term (nominated first session and threatened a fil...then Rep took over, never got a vote. I thought Bush removed all of Clinton's choices, but I could be wrong. If it's true though...kind of argues for the what's good for the goose arguement.

I also find the arguement about majority rule to be interesting in light of the population represented.

[SnyderShrugged]

Originally posted by gbear
Skin-n-vegas, are you advocating the British style? Recognize that whatever the prime minister wants to happen there pretty much happens. Is that what you want?

Thiebear, think for a second about what you posted. There has been a guy waiting 12 years? So a Clinton nomination hasn't gotten a vote? I know there was one that lasted pretty much through Clinton's term (nominated first session and threatened a fil...then Rep took over, never got a vote. I thought Bush removed all of Clinton's choices, but I could be wrong. If it's true though...kind of argues for the what's good for the goose arguement.

I also find the arguement about majority rule to be interesting in light of the population represented.


I'm advocating no fillibuster to delay a vote of yes or no. Is that British style?

I'm asking a legit question, I think.

Isnt that what the fight is about? The Dems want to retain the right to a delay an up or down vote via hybrid fillibuster, right?

Please fill me in on any error I may be making in my synopsis

[Predicto]

In general, we are talking about very few nominees, aren't we? Ten out of 214 were not confirmed, presumably the handful with the views most outside the mainstream.

People, the whole POINT of our famous Constitution is to protect the minority from being trampled too easily by the majority, just as we protect the individual from being trampled by the government. That is why we have this Republic, not just a straightforward majority-based Democracy like the one in Great Britain.

[DjTj]

Originally posted by skin-n-vegas



I'm advocating no fillibuster to delay a vote of yes or no. Is that British style?

I'm asking a legit question, I think.

Isnt that what the fight is about? The Dems want to retain the right to a delay an up or down vote via hybrid fillibuster, right?

Please fill me in on any error I may be making in my synopsis

The Senate has always had the filibuster to delay any vote of yes or no, on almost any issue. The point is to allow proper debate of the issues and to protect minority positions.

The founding fathers were very afraid of "mob rule" which is more prevalent in European-style parliaments, where you've seen a more rapid move towards socialist government. Giving slim majorities more power tilts the balance in favor of more progressive government. Our system of checks and balances, including the filibuster, has kept our nation more conservative than the rest of the world.

In the House, bills are passed on yes-or-no votes with no filibuster provisions, which makes sense because it is a purely representative body, where each vote corresponds to a certain number of individuals. The Senate is supposed to make more carefully considered decisions, which is why they have 6 year terms and allow filibusters. The Senate does not represent the population by strict proportion - they represent states rather than people. Making decisions by yes or no in the Senate doesn't really make sense in a strict democracy sense. The Senate is a place where sophisticated parties (states) can make deals and weigh the long-term ramifications of legislation. Turning the Senate into another House by getting rid of filibusters would dismantle the whole point of a bicameral legislature.

[flyingtiger1013]

Let us not confuse the Constitution with Senate rules or even House rules. Very different animals. The Supreme Court will not and could not interfere with the Rules Committees of the Congress. It's purely internal.

[SnyderShrugged]

Originally posted by DjTj


The Senate has always had the filibuster to delay any vote of yes or no, on almost any issue. The point is to allow proper debate of the issues and to protect minority positions.

The founding fathers were very afraid of "mob rule" which is more prevalent in European-style parliaments, where you've seen a more rapid move towards socialist government. Giving slim majorities more power tilts the balance in favor of more progressive government. Our system of checks and balances, including the filibuster, has kept our nation more conservative than the rest of the world.

In the House, bills are passed on yes-or-no votes with no filibuster provisions, which makes sense because it is a purely representative body, where each vote corresponds to a certain number of individuals. The Senate is supposed to make more carefully considered decisions, which is why they have 6 year terms and allow filibusters. The Senate does not represent the population by strict proportion - they represent states rather than people. Making decisions by yes or no in the Senate doesn't really make sense in a strict democracy sense. The Senate is a place where sophisticated parties (states) can make deals and weigh the long-term ramifications of legislation. Turning the Senate into another House by getting rid of filibusters would dismantle the whole point of a bicameral legislature.



Thanks for the info.!

[SnyderShrugged]

This seemed to fit. http://www.cato.org/pubs/pas/pa-446es.html

How Constitutional Corruption Has Led
to Ideological Litmus Tests for
Judicial Nominees
by Roger Pilon

Roger Pilon is vice president for legal affairs at the Cato Institute. He holds Cato's B. Kenneth Simon Chair in Constitutional Studies and is the director of Cato's Center for Constitutional Studies.


--------------------------------------------------------------------------------

Executive Summary

The 2000 presidential election was widely understood to be a battle for the courts. When George W. Bush finally won, following the Supreme Court's split decision in Bush v. Gore, many Democratic activists simply dug in their heels, vowing to frustrate Bush's efforts to fill vacancies on the federal courts. After Democrats took control of the Senate in May of 2001, they began calling explicitly for ideological litmus tests for judicial nominees. And they started a confirmation stall, especially for circuit court nominees, that continues to this day. Thus, 8 of Bush's first 11 circuit court nominees went for over a year without even a hearing before the Senate Judiciary Committee, and most have still not come before the committee.

As the backlog of nominees grows, Democrats are quite explicit about the politics of the matter: their aim is to keep "highly credentialed, conservative ideologues" from the bench. The rationales they offer contend that judges today are, and perhaps should be, "setting national policy." One such "policy" they abhor is "the Supreme Court's recent 5–4 decisions that constrain congressional power." Thus the importance, they say, of placing "sympathetic judges" on the bench, judges who share "the core values held by most of our country's citizens." In a word, everything is politics, nothing is law.

The battle between politics and law takes place at many points in the American system of government, but in recent years it has become especially intense over judicial nominations. That is because judges today set national policy far more than they used to—and far more than the Constitution contemplates. Because the original constitutional design has been corrupted, especially as it relates to the constraints the Constitution places on politics, we have come to ideological litmus tests for judges. The New Deal Court, following President Roosevelt's notorious Court-packing threat, politicized the Constitution, laying the foundation for several forms of judicial activism. After that it was only a matter of time until the judiciary itself had to be politicized. We are reaping the fruit of that constitutional corruption.

That will not change until we come to grips with the first principles of the matter—with the true foundations of our constitutional system. Yet neither party today seems willing to do that. Democrats have an activist agenda that a politicized Constitution well serves. Republicans have their own agenda and their own reasons for avoiding the basic issues. Thus, it may fall to the nominees themselves to take a stand for law over politics, the better to restore the Constitution and the rule of law it was meant to secure.

[Predicto]

Originally posted by flyingtiger1013
Let us not confuse the Constitution with Senate rules or even House rules. Very different animals. The Supreme Court will not and could not interfere with the Rules Committees of the Congress. It's purely internal.

I wasn't confused. It was an analogy to other non-majoritarian aspects of our governmental system.

[Mad Mike]

I could be wrong but as I understand it, the Dems aren't doing the traditional filibuster so much as calling it a filibuster and refusing to vote. They should at least be required to do an actual filibuster. Stand up there and read the phone book or something. If it means that much to you, it's the least you can do. Also, as I understand it the filibuster isn't meant to stop a vote so much as it is a means to delay a vote while more support is drawn up and occasionaly block a vote with a deadline.

While I'm all for protection of the minority, the minority should not be taking advantage of the rules to hold up progress. I want my government to get things done.

:2cents:

[DjTj]

Originally posted by Mad Mike
I could be wrong but as I understand it, the Dems aren't doing the traditional filibuster so much as calling it a filibuster and refusing to vote. They should at least be required to do an actual filibuster. Stand up there and read the phone book or something. If it means that much to you, it's the least you can do. Also, as I understand it the filibuster isn't meant to stop a vote so much as it is a means to delay a vote while more support is drawn up and occasionaly block a vote with a deadline.

While I'm all for protection of the minority, the minority should not be taking advantage of the rules to hold up progress. I want my government to get things done.

:2cents:

I think the way it works now is actually more efficient.

I'd rather my Senators not stand up and read the phone book. If the Republicans know that the Democrats are going to filibuster, it's better to move on to other business than to shut the Senate down for a week for phone book readings.

[Larry]

Yes, (IMO) what we now have is a threattened fillibuster.

Under the traditional, Jimmy Stewart fillibuster, once started, nothing can be done that requires the entire Congress.

In order to prevent that, a newer system has been developed. They ask (I don't know how) all the members if they intend to fillibuster, and if the answer is "yes", they ask how many would vote to end one. If the answer to question #2 is "not enough", then they simply never bring the matter to the floor. That way, the entire Senate isn't bogged down.

But, that way, the minority also never has to deliver on their threat.

Frankly, I'd like to see the m atter come to the floor, and have everybody actually stand up for their side. (Not that I think they'll be honest about their side, or anything. Let's face it: under the current administration, the ideal judicial nominee is someone who thinks Pat Robertson is too far to the left, but who has never said so in writing, so that the R's can then claim that he's "moderate". Just as, I assume, Clinton looked for people who agreed with him, but hadn't said so).

But I'd hope (OK, so I'm a dreamer) that if some of these nominees actually came to the floor (and a fillibuster) that the media would actually do some research and reveal the truth about these guys. (As opposed to simply quoting, without checking, sound bites from "both sides".)

[NoCalMike]

It is hard to get Democrats united on ANYTHING these days....

[Ancalagon the Black]

George Will has a good article on why the filibuster should remain.

[luckydevil]

Ancal

link?

[Ancalagon the Black]

Sorry; was being lazy.

http://www.washingtonpost.com/wp-dyn/articles/A48499-2005Mar18.html

Why Filibusters Should Be Allowed

By George F. Will

Sunday, March 20, 2005; Page B07


With Republicans inclined to change Senate rules to make filibusters of judicial nominees impossible, Democrats have recklessly given Republicans an additional incentive to do so. It is a redundant incentive, because Republicans think -- mistakenly -- that they have sufficient constitutional reasons for doing so.

Today 60 Senate votes are required to end a filibuster. There are 55 Republican senators but not five Democrats who will join them. Republicans may seek a ruling from the chair -- Vice President Cheney presiding -- that filibustering judicial nominees is impermissible, a ruling that a simple majority of senators could enforce.

Democrats say they would retaliate by bringing the Senate to a virtual halt -- easily done within Senate rules. Republicans rejoice that such obstructionism would injure the Democrats. But conservatives would come to rue the injury done to their cause by the rule change and by their reasoning to justify it.

Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Some conservatives say the Constitution's framers "knew what supermajorities they wanted" -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings."

Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Robert Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. So, conservatives, think:

The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

Exempting judicial nominations from filibusters would enlarge presidential power. There has been much enlargement related to national security -- presidential war-making power is now unfettered, Congress's responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.

georgewill@washpost.com

© 2005 The Washington Post Company

[TMK9973]

So now it's the Republicans Not allowing a up or down vote on withdrawl with the Iraq war. They are threating the Fillabuster so the vote never gets to the floor. Democrats are not threating the nuclear option but I was wondering if anyone's opinion has now changed....

FYI - I thought the senete needs to keep the fillabuster then, and I think it needs to keep it now....

[AJ_Skins]

The issue at the time was whether filibusters should be allowed on judicial nominees. There is no question about it being allowed on other matters. So there is no relationship.

[TMK9973]

So AJ - You belive some things should require a up and down vote every time and other things should not? Let me guess where the line is drawn - Democrats in control - Fillabuster ok, republicans in control, fillabuster not ok.


Read the articly and refresh your memory. The option would have had effects well past Judical nominess....

[Bang]

So, shouldn't the minority and majority vote the way their constituents tell them to, and not their party?

Oh, wait. My mistake. For a second I forgot we don't have much say in what actually goes on in our government.

~Bang

[Destino]

The issue at the time was whether filibusters should be allowed on judicial nominees. There is no question about it being allowed on other matters. So there is no relationship.

No relationship because you say so.... In reality however the issue in question doesn't matter, it's a question of if filibusters should be allowed or not. The actual issue is always going to be different.

[TMK9973]

So, shouldn't the minority and majority vote the way their constituents tell them to, and not their party?

Oh, wait. My mistake. For a second I forgot we don't have much say in what actually goes on in our government.

~Bang

Actually - No. We don't live in a direct Democercy, and neither would I want to. We live in a repersenitive democery. Meaning we vote for the people we trust to look after our best intrest long term.

[Switchgear]

We live in a repersenitive democery.

Out of context thread, here I come. :movefast:

[Larry]

Out of context thread, here I come. :movefast:

C'mon, you think that was funnier than


we vote for the people we trust

?