THE PLANK DECEMBER 29, 2009
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In response to Ezra Klein's high-profile campaign to encourage an assault on the filibuster, and the invidious development of a de facto 60-vote requirement for passage of legislation in the Senate, the estimable conservative reporter Byron York comes up with a clever but wrong-headed rationalization for past GOP efforts to kill Democratic filibusters against the Bush administration's judicial nominees. Republicans were not, claims York, endorsing a general end to the right of a minority to obstruct legislation via filibusters:
The argument was that the judicial filibuster undermined the Senate's constitutional responsibility to give advice and consent on the president's judicial nominations. When legislation is filibustered, it's possible for a bill's sponsors to make changes that will satisfy opponents. But what happens when a nominee is filibustered? No advice and consent. The Constitution does not require the Senate to pass a national health care bill, but it does require it to confirm or deny the president's appointees.
This is sophistry. For one thing, Democrats blocking judicial nominations were indeed looking for a "deal" that would have changed procedures for selection, appointment and confirmation of federal judges, not just seeking to block action on particular nominees. For another, it's hardly evident that today's GOP wielders of the filibuster weapon are looking for "changes that will satisfy opponents;" simple obstruction is the explicit goal of most conservatives fighting health care reform. And beyond that, Republicans are certainly not eschewing procedural roadblocks to Obama's presidential appointments.
But the biggest problem with York's analysis of the "judicial filibuster" issue is that he forgets we are talking about lifetime appointments to the higher regions of the federal bench. Legislation can be repealed, as Republicans so avidly say they intend to do with health care reform (if it is enacted) at the earliest opportunity. Barring the exceptionally rare resort to impeachment, federal judges are there as long as they wish.
Personally, I dislike judicial filibusters as much as any others, and would happily abolish the filibuster entirely. And there's plenty of hypocrisy to go around when it comes to the "right" of a Senate minority to destroy the ability of the majority to govern. But if anything, the case for the GOP's social-conservative-driven (and unsuccessful) assault on the judicial filibuster was weaker than the case for killing legislative filibusters today.
Ed Kilgore is Managing Editor of The Democratic Strategist, and a senior fellow at the Progressive Policy Institute.
3 comments
York is also simply wrong about the constitutional imperative of the Senate giving an up-or-down vote on presidential nominations. For one thing, the Constitution doesn't spell out how the Senate is to give its consent. The strictest possible reading would actually tend to indicate that a two-thirds majority is required for "advice and consent," as is made explicitly clear in the sentence preceding the appointments procedure. It took time for President Washington and the first Congress to settle on something like the current system in which the president nominates with no advice, and the Senate simply votes to grant or deny its consent by simple majority. One could just as easily read from the text a constitutional requirement that the president must receive advice in the form of a list of candidates from the Senate prior to making a nomination. Our practice is otherwise, and that's OK, precisely because the Constitution is silent on the method by which "advice and consent" is to be given or withheld. Further, even granting York's thesis that customs not found in the Constitution are constitutional requirements, this reading cannot support the statement that a Senate vote on any nominee is required. Not voting is simply one way of denying consent. The "advice and consent" of the Senate is required to "make" appointments; but if consent is withheld, then the appointment is not made, and so any denial of consent will do to not make the appointment. Even a filibuster that prevents a vote on granting consent.
- rhubarbs
December 29, 2009 at 5:42pm
I guess I don't get the point of this article, given the last paragraph in which the author acknowledges that "there's plenty of hypocrisy to go around." Maybe the point is that every stupid thing said by one party has to be answered by a pointless article by the other party. It is like York said lemons and oranges are similar in that they are both fruit, and Kilgore says, that was a stupid thing to say, of course lemons and oranges are different and conservatives are sour-puss lemons and democrats are sweet, succulent oranges. Of course my pathetic attempt at some humor here is not meant to take anything away from rhubarbs excellent clarification.
- nacnud1
December 30, 2009 at 12:55pm
Klein is correct, but does not really follow though on the consequences of allowing the filibuster to continue. Neither does Kilgore. Unless the filibuster in he Senate can be broken, very little reform of anything is going to happen. The filibuster is a parliamentary maneuver requiring at present 60 votes for cloture to be able to vote on a bill, nominee, whatever. However, it is no big secret that the filibuster can be broken (probably for good) by 50 votes plus the VP. The nuclear option is perhaps the best known filibuster-breaking parliamentary maneuver. Google it, if you don't know how it works. It's not rocket science. You think the Republicans would not have used the nuclear option in 2005 if what they wanted wasn't handed to them by a "Gang of 14?? [They wanted a set of right-wing judges approved for Federal bench positions -- and they got most of what they wanted by threatening the nuclear option.] You think they wouldn't use it again to pass whatever once they again become a majority? You think “Senate Tradition” is going to stop them -- like it now paralyzes Democratic Senators and many pundits from seriously advocating breaking the filibuster?? Get Real. If 50 Democratic Senators and the current VP don't have the spine/ cajones to do so, then in all likelihood forget fairy tales with happy endings for this Senate and Chief Executive -- and Democratic control of US Government. If there are not 50 votes to end a filibuster, then passing bills or amendments to really reform or imrove health care, climate change, judicial nominations, whatever, are going to be dysfunctional exercises in "pass inadequate bills and pronounce those bills as ground-breaking". And hope the American voters don’t notice. Voters on average may be generally uninformed, but they are not THAT dumb. In health care and other issues, Obama and Senate Democrats , most Pundits, and many Broderesque -bloggers constantly reinforce a meme that liberal or progressive Democrats are easily rolled by those making intransigent demands. This reinforces a long-standing meme that Progressives/Liberals are wimps, wusses, chumps-- pick your term. McCain, Coker, deMint and most Republicans may be batshit bonkers pushing insane ideologically-based solutions, but they appear very willing to take a lot of flack to push their agenda. To coin a phrase, politics ain't beanbags. Voters consistently reject candidates they view as weak wimps, no matter what their ideology or personal heroism (Google: Wilkie, Dewey, Stevenson, Stassen, McGovern, Rockefeller, Carter, Dukakis, Gore, Kerry, etc).
- gdbittner
December 30, 2009 at 5:32pm