While researching for the final paper of my lawmaking process class, I discovered some interesting bits of information that ultimately changed my position on the current judicial nomination/filibuster brouhaha. My opinion on the matter before doing my research was pretty similar to the position taken in this National Review editorial: the Republicans can change the rules with a really lame move, but they definitely shouldn’t. This post is going to be long and probably pretty boring as it will essentially be my paper highly condensed. For those who care about this issue, click to proceed.
Filibusters in History
The filibuster is a prime candidate for reform. It’d be nice if the Senate was more interested in reforming this peculiar practice instead of trying to bring campaign-finance “reform” to blogs. Throughout my research I never came across a filibuster that accomplished something good. Even the very first “filibuster” (it was more like a simple extended debate) in 1790 had a result of dubious value: it put our national capitol in a humid swamp now known as Washington, D.C. Throughout the rest of the 19th Century, Whigs from the South institutionalized the filibuster in their efforts to preserve their economy based on slavery (and of course to preserve state’s rights, which normally is a good thing). After the Civil War the use of the filibuster became common place, often used to block civil rights measures. The zenith of unrestricted debate was reached in 1917 and culminated in the infamous filibuster, spawned by the Zimmerman Note, that pitted 11 isolationist Senators against the entire country and the President. President Wilson, in reaction to the filibuster, made the now famous statement, “The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.” Through 1930 and 1965 the filibuster was largely a tool of Southern Democrats to kill civil rights measures. Unfortunately, they successfuly killed 11 such measures with the filibuster, and it is almost impossible to tell how many civil rights measures were weakened or dropped because of a threat to filibuster.
Modernly, the filibuster is an almost routine part of Senatorial debate. With an overcrowded docket, the Senate’s time is at a premium, thus with just one Senator threatening to filibuster a measure is often dropped for a later time. This is especially true at the end of the session when the Senate is in a rush to conclude its business. Furthermore, with the two-track debate system introduced in the 1970’s, the cost of filibustering has been lowered. The two-track system allows the Senate to consider multiple pieces of legislation simultaneously. If one bill gets filibustered, they can just move on to another bill. This reduces the political cost of the filibuster because it doesn’t cause the entire debate process to be held hostage by a filibuster. This also reduces the human cost for the filibusterer himself because he only has to hold the floor when the offending bill is being considered and not until the other side gives in or votes for cloture (ending the debate). Gone are the days of Huey Long’s recipe reading and Strom Thurmond’s telephone directory recitations.
A Precedented Nuclear Option
The claim that the Republican’s “nuclear option” is unprecedented is only true in a very technical sense. In fact, I’m almost tempted to say that this claim is just plain false. The nuclear option is a deft piece of procedural gamesmanship, which lets a simple majority of senators change the rules. Here is how it would work. First, a Senator would allow for an extended debate and then raise a point of order with the Presiding Officer (currently Vice President Cheney), stating the debate is dilatory and a vote should take place within a designated time frame. Unless the Presiding Officer refers the point of order to the Senate, there is no debating it. Thus, the Presiding Officer would rule in favor of the point of order, ending the debate at the specified time. The minority party could appeal the ruling, but then the majority could respond with a motion to table the appeal. The motion to table the appeal is non-debatable and passed with only a simple majority. Senator Byrd (D-WV) used this “nuclear option” twice (1977 and 1980) to change the rules, and one time it was precisely to avoid a filibuster. So, this would not be the first time a majority party unilaterally changed the rules in its favor.
The Limited Filibuster
The only other meaningful way one can say the Republican’s threats are unprecedented is that it would be the first time filibusters are forbidden from judicial nominations decisions. However, excluding use of the filibuster is nothing new either. There are already 26 laws on the books that eliminate the possibility of filibusters in certain areas of national security, national defense, energy policy, environmental policy, federal budget, international trade, and arms control. So, by my lights, the only way one can claim that the Republican’s nuclear option would be unprecedented is that it hasn’t been applied to judicial nominatee decisions yet. And to that claim I respond, well, duh, otherwise they wouldn’t have to be doing it now. Plus, this claim is almost meaningless since the Senate majority does many things that are unprecedented (e.g. nearly every law it passed since if it had already been passed it’s highly unlikely they’d be passing it again). Another way to make this point is that the fact that it is unprecedented doesn’t mean its bad.
There are many possible reforms that could be implemented to curtail the abuse of the filibuster. For example, reforms like what the Republicans are now suggesting (preventing judicial nominations from being filibustered) could be one avenue of effective reform. As mentioned before, there are already many subject matters that have this restriction. Eliminating the two-track system might also be effective because filibusters would have a higher political cost since they would hold up the entire Senate calendar. Reasonable time limits, like those already in affect for postcloture debate, could also be enacted. A time period that has a definite end yet is long enough for the minority position to make its case, argue for moderation, and win points with its political supporters could go a long ways in limiting the abuse of the filibuster.
And in the midst of these reforms what should be remembered is that any rule change that is made can be undone. The Senate has the power to change its procedural rules to however it sees fit. If it is found that any rule change is an unreasonable or harmful restriction on the filibuster, then it can be removed.
With all this being said, I would like to make clear that I’m not saying that what the Republicans want to do is the best path towards reform. All I’m saying is that it isn’t something that should have everybody freaked out because the minority party is suddenly going to get trampled underfoot. Like I mentioned before, I was opposed to the Republican’s political manipulations. However, now I tentatively support the nuclear option, but not because it will get the judges I want on the appellate circuit (that’s a whole ‘nother post). I want them to deploy the nuclear option because I believe it will help push the Senate to reform the filibuster. I still don’t like the idea of the Republicans basically bullying their way to reform, but, as in all things political, I choose the lesser of two evils.
One final thing, over the past couple of years my libertarian bent has been growing stronger and stronger, and a friend of mine reminded me: the filibuster is good because it means the Government isn’t doing anything. That sounds good to me. So maybe I’m wrong about all of this, and if anything we should be encouraging the use of the filibuster.
n.b. This post is probably going to be altered a bit in the near(?) future as I actually proofread it when I’m not exhausted and add in a few more thoughts.