Monday, April 25, 2005

The Filibuster and the Republic

A Short Story

     I find it hard to explain why filibusters - arcane tools of Senate procedure which are more at home on C-Span than Headline News - have become a hot topic of discussion. Normally I'd yawn too. I can't watch C-Span any more than I can watch NASA TV (Ever flip by? All you see is a starfield and every few minutes someone comes on the radio to talk about air temperature.) I rely on Remember in November to get my C-Span news. Anyway, I do care today, probably because we're knee-deep into Pesach (Shout out to ORF for recognizin') and I'm not getting any fiber.
     Anyway, our story so far: the religious right has its panties all bunched up in a knot about gay marriage and the word "God" in (pick one: public school, money, Pledge, courthouses) and abortion and athiests and the general heresy and godless secularists that plague our great country under Jesus, America. I don't know what on earth stirred up this hornet's nest. Maybe it was Clinton, maybe it was Reagan, maybe it started earlier. I don't know. But they're pissed. And now they're coming after your judges. One opinion that I believe is almost universal: we are a polarized nation. There doesn't seem to be a middle ground these days. You either love Bush or you hate him. You can't love Bush and dislike his policies - it's not allowed. And sadly, it's becoming the same way on the other side of the aisle too. So in the spirit of hatin', Bush is busy nominating a large number of highly controversial people to judicial posts and other positions (UN Ambassador). And of course the Democrats are filibustering.
     What is the filibuster, exactly? According to Republicans, it's a threat to democracy. (Don't look up that phrase on the internet, though, as the results are extraordinarily embarrassing. Still, don't judge my argument by my "peers".) To the encylopedia, however, it is a legislative tactic to prevent polarizing legislation. It is not specifically mentioned in the Constitution, but its existence is owed to Constitutional rules which do not limit debate in Congress. (In fact, looking at it this way, anti-filibuster rules may not meet the strict constitutionalists' definitions for constitutionality. How ironic...) We have heard and read all kinds of verbage about how it's undemocratic or how it prevents tyranny from the majority, blah blah.
     It may be all of that. But I want to talk about how the filibuster protects our Republic. Despite the current mob-rule sentiment, there is something inherently unfair and unjust about a winner-take all system. We recognize this in our daily lives: when we go out to eat with friends, we split the bill, we don't make the person with the largest expenditure pay the whole thing; if we were to order 10 pizzas for a party of 30 guests and 6 of them are vegetarian, we might order 2 pizzas without pepperoni. We don't force those people to eat meat because the other 24 do. (Maybe you do. In that case, stop reading this and go back to beating your wife/dog/kids because you're just mean.) Sometimes winner take all is the only feasible way to operate. For example, if on a vacation I want to go on a cruise and my wife wants to go snow skiing, we'll have to pick only one. (For the record, we both love cruises and I'm too scared to ski in mountains any steeper than those in North Carolina.)
     Judicial nominations work this way too. There's no compromise - a judicial nominee is either approved or rejected. That's why filibusters are so great. In a majority-vote situation where the parties are extremely polarized (say, like now), the slightly majority party could push through any number of extremists into the judiciary. But since the Senate requires a 3/5 majority to break a filibuster, nominees must be acceptable to at least some of the opposition. Even if there is no filibuster, the threat of a filibuster usually causes Presidents to nominate, if not moderate, then close to moderate appointees. Laws and judges alike tend to be closer to compromise than to be partisan. Of course, the classic definition of a compromise is when nobody leaves happy, so you can imagine this has become very popular.
     Today, however, Bush has not been shy about pushing extreme laws and judicial nominees down the opposition's throats. And whether you agree with his position or not, you should be able to agree that they are "extreme" in the sense that they are supported only by one party and not at all by the other. I'm not pinning blame - obviously the Democrats are circling the wagons and are being generally disagreeable about bills they might otherwise like. But this is exactly why the filibuster works. Eventually, some sort of unhappy compromise must be made and it's business as usual in the capital. An inefficient government is the best government. Listen, I'm "liberal" and I want the government to interfere as little as possible. I can only imagine how much a conservative or libertarian might feel. Look, you may love the drooling, rabid pit bull when it attacks your annoying neighbor that keeps asknig to borrow your tools but never returns them. But someday that pit bull will turn around and realize that your leg looks just as tasty if not more so (since you shower and apparently your neighbor does not). My point is, the government is the pit bull and wouldn't you rather kneecap that sucker now before he turns around to attack you? Even if it means he won't get your neighbor? If an issue is important enough it will be resolved eventually. If America really is becoming more conservative, than the definition of a "moderate" judge will become more conservative and Republicans will soon have 3/5 of the Senate. Why the rush to change the way our government works? Is the filibuster just too old-fashioned for our "drive-thru" mentality? Does this push represent pent-up frustration or the fear that the Republican hold on power may not last forever?


The Indigent Blogger said...

The truth is that filibustering judicial nominees is highly unusual and has happened more in the last four years than in the history of the republic. It can't even be said that it is because of extremist nominees sent up by Bush. Janice Rogers Brown, for example, is currently ruling on the California Supreme Court... hardly a bastion of biblical law. Besides, Clarence Thomas was highly controversial and a known conservative, yet he wasn't filibustered. Scalia wasn't filibustered and was, in fact, approved 98-0 in the Senate. Even Bork wasn't filibustered; a vote was allowed and his nomination was defeated.

I'm not saying the Republicans should necessarily change the Senate Rules, but I am saying the Democrats should be allowed to vote their conscience on these nominations. I bet some of them get more than a few Democrat votes, which will say a lot about the rule of Democrat leadership in the Senate.

With regards to John Bolton, his only sin at this point is being nominated by President Bush. That being the case, he either needs to be approved or voted down. Of course, the last time the Democrats have voted down a high-profile "Bush" nominee before. The Democrat Senate rejected President George H. W. Bush's selection of John Tower as the Secretary of Defense, and that's how we ended up with Dick Cheney. Rich!

Mike said...

The Filibuster of judicial nominees has created a crisis situation in our judicial branch. Last I heard there were over a dozen federal court vacancies. Cases are piling up and people are not being given a speedy trial. The ACLU should be up in arms. Where are they?
Republicans aren't opposing all filibusters. Just filibusters of nominations. The Constitution gives the executive the power to appoint judges. The Senate is given the role of "advise and consent". It is not given the power to obstruct. The Senate is required to say yes or no on judicial nominations.
What we have here is the Democrats afraid they are losing control of the last branch of government they have stacked in their favor. And they're kicking and scratching and clawing to hang on to it any way they can. They're afraid they won't be able to legislate from the bench anymore, which is the only way they have left to advance their agenda.

Ben said...

Yeah, none of the candidates that haven't been allowed their up or down vote are particularly extreme. None of them ahve given any sign of wanting to bring Jesus in to the cabinet, or overturning Roe v Wade. The Dems are jsut being obstructionist at a level never before seen. What's ironi is that 19 current Dem Senators voted for a bill in 1995 to end the filibuster because they didn't like the way the Republicans were using it. Now, according to many of those 19, the filibuster is all that stands between us and Jesus-land. Both sides are hypocritical, loving the filibuster when it helps them, calling it a sin against the Constitution when it doesn't.

I agree with whomever said Bolton is only controversial because Bush nominated him. Some of our best UN ambassadors, Daniel patrick Moynihan coming to mind first, were hostile to a lot fo the UN, and did a fantastic job. The fact is, with so many allegations coming out about UN wrongdoing, be it oil-for-food, or pimping little girls, or watching slaughters happen, it should be a priority to put in someone who won't take that august body at it's word. Bolton is the exact kind of person needed in that job right now.

Mike said...

I was watching the CBS Evening news last night and they said in fact zero judicial appointments by Clinton were "filibustered" by the Republicans. The republicans used other means to keep the candidates from coming to a vote. I'm guessing they probably didn't let them get out of committee. Can anyone confirm this?

Mike said...

I found this interesting article today referencing how the democrats used to use filibusters to block civil rights legislation back in the 1960's. The party of tolerance and diversity indeed!

Ben said...

Funny, Mike. If you get all your info from the mainstream media, you'd think that Democrats freed the slaves and fought against the evil Republicans to end segregation. You'd never know it was the who fought against the civil rights movement.

I also like how the article mention John Lewis, beaten in Selma in the 60's in a protest against States' Rights, and now wondering what happened to States' Rights in the Schiavo case. Although Lewis, as far as former Civil Rights leaders who are now in politics goes, seems to be a pretty good guy.

Ben said...

I also want to add something about checks and balances to this discussion. As you well know, the system was created with the intent of having each of the three branches of government balancing against one another to keep any one wing from getting too powerful. One of the checks and balances is that the Executive branch picks judges. The legislative branch is jsut supposed to approve or disprove. By using the filibuster they are, when you come down to it, attempting to take away the President's Constitutional power, and thus weakening the Executive branch and screwing over the system of checks and balances. Just like the left uses the judicial branch to overturn the will of the people on laws they don't like, or to create laws they do like, they are now using the judicial branch to weaken the executive. Not only is Congress acting like a stubborn child who isn't getting what he wants and throws a fit, they are going against the SPIRIT of the Constitution, if not the actual wording. I don't have a copy in front of me, but I believe it says the President chooses judges, Congress confirms or denies them. They aren't doing that, and thus are not doing the job the people elected them to do. Shame on them for paying more attention to partisan politics than to doing their jobs.

TheMockTurtle said...

Ah yes! Good ole' liberal media! ... um, where is it exactly?

Mike said...

Well I have a copy of the Constitution in front of me, and you are absolutely correct, Ben. It grants the power to appoint judges to the President. It does not grant that power to the Senate.

Some other interesting facts. The President is given the power to make appointments while the Congress is in recess and those appointments last until the end of the next congressional session. So if he wanted to, Bush could just wait until the Senate is in recess and fill all the vacancies and they would be in place until the Senate came back and went on recess again, at which time he could do the same thing. I guess he isn't doing this out of good faith. He's a uniter, you know, not a divider.

Also, it says in there that Congress has the power to decide what cases can be tried in court and which ones can't. So in effect, Congress has the power to say, "Hey federal courts, we're taking gay marriage off the table. You can't try any more cases concerning marriage rights." But the reason they don't do this is because activist Judges like Greer thumb their nose at the legislature, call their laws unconstitutional, and the executive branch is too scared to challenge it. I long for the days when Andrew Jackson said of a Supreme Court ruling he did not like, "John Marshall has made his decision; now let him enforce it."
I should probably point out that Jackson was a democrat and he was referencing a decision that granted American Indian reservations the rights of foreign governments. Once again, the party of diversity and tolerance INDEED!
But I agree with the premise of the Executive branch going against rulings that make no sense and are contrary to the will of the people.

Ben said...

A big difference between right and left in this country is that the left tends to see the Constitution as something to be interpreted, and the right sees it as a document that says exactly what it says, nothing more, nothing less. Which is better? Who knows? I know that I think the Bible and overall Judeo-Christian morality could use a bit of updating, so maybe the Constitution could, too. But I don't think so. I like what it says, literally, and tend to dislike everything that's ever come out of someone reinterpreting it. A Supreme Court Justice once said, "The Constitution is what you make of it." Seeing as his job is to decide if laws meet the requirements of the Constitution or not, he, and other judges that follow his philosophy, ought to be removed from office (of course that would be unconstitutional, they get it for life, right?).

Scott said...

Actually, Mike, Bush has made use of Recess appointments, including Bill Pryor and Charles Pickering. I don't his total stats on the use of this tool, but for some recent history: Reagan averaged 30 per year, Bush I averaged 20 per year, and Clinton averaged 9 per year. But thanks for doing your homework before posting.
Also, regarding filibusters, this doesn't block appointments, it only delays them. The problem for the president is that when theres a delay, the American public has time to learn about these nominees before it's too late. And they typically don't like what they see.

Mike said...

You're right, Scott, Bush has used the recess appointments. I intended to work that into my argument as a disclaimer but I didn't. Thanks for keeping me honest. My point was Bush could bypass the Senate on all his appointments if he chose to, but to date he hasn't. The few he did were just a shot over the bow to the democratic Senators.
So filibusters delay nominations. How long? Until the next administration? Until the next democratic administration? Until the public can learn they don't like them? Tell me what's wrong with Janice Rogers Brown? No wait, I'll tell you. She's a strong black woman and the democrats don't want to give the republicans credit for advancing a minority on her way to the Supreme Court. That is her only sin.

The Attractive Nuisance said...

Theoretically, the filibuster can go on forever (kind of like tennis). Once the filibuster is underway, it can only end when a supermajority of the Senate (60 out of 100) votes for cloture.

Mike Hubbell, you're almost right about Congress's ability to dictate what cases can be decided by the judiciary. Article III of the Constitution gives original jurisdiction over certain types of cases to the Supreme Court. (The lower courts are only mentioned in the Constitution to say that Congress can establish courts lower than the Supreme Court.) But it's true that Congress could take, e.g., gay marriage off the table for the courts if it wanted to.

ORF said...

Ok, I'm super worn out from reading all that backing and forthing so I'm not going to take the time to double check this... BUT: Am I totally incorrect in saying that the filibuster, as a tool, is not something that is actually USED all that much, but rather trotted out as a threat like a redneck with a sawed off shotgun chasing the boy who knocked up his daughter? And I also believe it has been said that just as many, if not more, various appointed positions went unfilled for most of Clinton's term in office as well thanks to Republican objection. For whatever reason, it's getting more press this time, but I think it's fair to say that Congress is the battleground of the parties. While I find John Bolton guilty of a few more things than merely being a Friend of George, I would venture to bet that many of the people who become controversial are often sacrificial lambs in the face of partisan warfare. In short, (although I'm not certain this was the point of your post, Scott) I appreciate the filibuster as a means of letting the general public become aware of whatever arcane feud is going on in Congress if for no other reason than for the American public to be alerted to the fact that the legislative body still has a pulse. Albeit a boring one, as C-SPAN will tell us.

Mike said...

You're correct, ORF, filibusters are rarely used. They are more of a threat. One party tells the other they have the votes and intend to use a filibuster. The majority party then doesn't even open it up for debate since it would shut down the Senate and put both sides effectively into a game of chicken to see who backs down first. The Republicans didn't use filibusters against Clinton appointees. They used other tactical means to keep the nominees from either getting into or getting out of committee.

ORF said...

Mike, thanks for doing my homework for me on that one. I do, however, stand corrected that more appointees have been voted down in Bush's tenure than Clinton's. An article by Sen. Bob Dole published in the New York Times today mentions that President Bush has in fact "the lowest appellate-court confirmation rate of any modern president. Each of the 10 filibuster victims has been rated "qualified" or "well qualified" by the American Bar Association. Each has the support of a majority in the Senate. And each would now be serving on the federal bench if his or her nomination were subject to the traditional majority-vote standard."
You can (and should, b/c Bob is a cool guy) read the whole article here:
(Some day, I'll learn how to insert code into comments. Anyone want to be my html tutor?)