Saturday, November 23, 2013

Modifying the filibuster rule: Senate Democrats actually act like Democrats!

Lat week was a good week for Democrats!

The Senate abolished the filibuster rule for judicial and Executive Branch nominations except for the Supreme Court at Senate Majority leader Harry Reid's demand. Francine Kiefer in Senate takes 'nuclear option' on filibusters: What does that mean? Christian Science Monitor 11/21/2013), "Reid’s proposed change to the rules bulldozes the filibuster and replaces it with simple majority approval for all executive and most judicial branch appointees, from agency heads and their assistants to federal judges."

This was long overdue. The Republicans were ready to do the same in 2005, and the Democrats would have been well-advised to let them do it. Instead, the "Gang of 14" constructed a classical "bipartisan" solution in the Beltway Village's meaning of the term, i.e., the Democrats agreed to do pretty much what the Republicans wanted and declined to call their bluff on the the "nuclear option" of amending the filibuster rule.

Andrew McCarthy & Mark R. Levin, writing for the segregationist National Review at the beginning of 2008 (McCain and the Gang of 14 01/18/2008) were very much upset with the Republican members of the Gang of 14 that brokered the deal that kept the filibuster rule intact:

Besides preserving their privilege (which allows a single senator, for absolutely no reason, to prevent a president from fulfilling his constitutional obligation to appoint officers of the United States, without whom the government cannot function), McCain and his confederates were most determined to avoid accountability. That was the essence of the Gang of 14 deal. The senators pretended, in a bluster of high-minded twaddle, to resolve the controversy without disturbing the chamber’s procedures. It was nonsense.

At the time, the president had made ten nominations that Democrats (and some Republicans) blocked. Three of them had been so abused by the senatorial intransigence that they finally withdrew their names from consideration. Of the remaining seven, the Gang of 14 agreed there would be a vote on only three. It then went on to preserve the filibuster, purporting that it could only be invoked in "extraordinary circumstances."
The editors of that same segregationist journal wrote in Nuclear Fallout 11/21/2013 after last week's victory for democracy, howled about the dreadful consequences they expected from this move:

The filibuster is not sacred writ, and we are on record supporting procedural changes to overcome partisan obstruction. The more serious concern here is that the Democrats are attempting to pack the courts, especially the D.C. Circuit court, with a rogue’s gallery of far-left nominees. That is worrisome in and of itself, but there is a deeper agenda: Much of what President Obama has done in office is of questionable legality and constitutionality. The president no doubt has in mind the sage advice of Roy Cohn: "Don't tell me what the law is. Tell me who the judge is." He is attempting to insulate his agenda from legal challenge by installing friendly activists throughout the federal judiciary. That is precisely what he means when he boasts, “We are remaking the courts.” Republicans are in fact obstructing those appointments; unlike the nomination of John Roberts et al., these appointments deserve to be obstructed.

The filibuster is a minor issue; the major issue is that President Obama is engaged in a court-packing scheme to protect his dubious agenda, and Harry Reid’s Senate is conspiring with him to do so.
Roy Cohn was the bizarre mob lawyer who kick-started his career for his sleazy staff work for Joe McCarthy, a man National Review founder William Buckley admired and defended.

Michael Gerhardt and Richard Painter described the Gang of 14 agreement and its results in "Extraordinary Circumstances:" The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform (Revised; American Constitution Society; Nov 2011).

On May 23, 2005, seven Republican and seven Democratic senators banded together to block a movement that would have changed the Senate forever. Because the Senate at that moment was otherwise almost evenly divided over a radical plan to revise the rules of the Senate to bar judicial filibusters without following the Senate’s rules for making such a revision, the Gang of 14, as the senators became known, controlled the future of judicial filibusters. They each agreed not to support a filibuster of a judicial nomination unless there were “extraordinary circumstances.” For the remainder of George W. Bush’s presidency, the agreement held, and there were no filibusters of judicial nominations. But, in the past two and a half years, several developments have threatened the continued viability of the agreement of the Gang of 14: Five members of the Gang are no longer in the Senate; Democrats took control of both the House and the Senate in 2006 and managed to hold onto a majority of seats in the Senate, albeit by a thinner margin, in 2010; and delays and obstruction of judicial nominations re-intensified after President Obama came into office. Perhaps most importantly, the remaining Republican members of the Gang of 14 have each found “extraordinary circumstances” justifying their support of some judicial filibusters.
In other words, the Republicans agreed to drop some of the most conservative nominations the Democrats were filibustering at the time, and the Democrats agreed to basically not filibuster any new ones, and the Democrats stuck to their agreement. (In other words, please let us keep the filibuster and we promise not to use it!) As soon as the Democrats got a Senate majority and a Democratic President was nominating judges, the Republican didn't bother themselves with the 2005 agreement and used the filibuster to an unprecedented extent against judicial nominations. Why not? It worked well for them during the Clinton Administration. Gerhardt and Painter describe the results as of the time of the paper:

However, in President Obama’s first two and a half years in office, his judicial nominations have been subjected to various delays and obstruction, including a successful filibuster upheld by each of the remaining Republican members of the Gang of 14. Almost 50 of the President's judicial nominations are still pending before the Senate, including 12 to the federal courts of appeal, while 84 judicial vacancies remain, 31 of which are considered emergencies based upon, among other things, extremely high caseloads. We cannot square this state of affairs with what the Gang of 14 had originally wanted or with any credible, neutral standard of "extraordinary circumstances." The Gang of 14 had hoped that their bipartisan compromise would facilitate judicial appointments and remove ideological differences as a ground of objection to a nomination as long as the nominee’s views were within the mainstream
of American jurisprudence and he or she had sound character and no serious ethical lapses. Instead, judicial filibusters, among other means of obstruction within the Senate, have been persistently directed at judicial nominees on the basis of speculation and distortion. These tactics have prevented the federal judiciary from operating at full strength, and have made the process of judicial selection unpredictable for everyone concerned, including the White House, the Senate, and the nominees. [my emphasis]
A recent Rick Perlstein piece reminded me that the very useful term High Broderism, which bloggers had used to designated the Beltway Villagers' idolatry of a phony centrism that was understood as Democrats conceding to Republicans, has fallen into disuse since its namesake, David Broder, passed away.

But High Broderism lives on. And its adherents were predictably disturbed at suchy a shameless display of partisanship (by the Democrats!) as the amendment of the filibuster rule this past week. Here are Sleep Mark Shields and David "Bobo" Brooks, declaring their allegiance to the faith on their Political Wrap (PBS Newshour 11/22/2013), Shields and Brooks look at long-term impact of Senate's 'nuclear' rule change :

Shields starts off by declaring it obviously a bad idea. But then proceeds to explain all the good reasons that the Senate Democrats have for doing what they did. Bobo was even more incoherent, and of course has a big sad because of the baleful effects it may have of sacred Bipartisanship:

Yes, they made a big mistake.

There's -- Mark's right. There's no question there's been a deterioration of norms, but that's no reason to basically begin the erosion of the institution of the Senate, what makes the Senate special. When you go to the Senate dining room and you look at the senators, they actually do talk to each other across party lines. They have working relationships. It's not great. It's not the way it used to be.

But they basically have working relationships. And they were able to pass legislation, even immigration reform, a couple weeks or months ago, because they have to do that, because to get a lot of stuff passed, including nominations, you have got to get 60 votes. And it's very rare that one party has 60 votes. So, they're used to working across party lines, in a way they just aren't in the House.

And so, if you take away that 60-vote thing, starting now with some of the nominations, but probably going within a couple of years to the Supreme Court nominations and maybe the legislation, you basically are turning the Senate into the House. You're basically beginning the erosion of what makes the Senate special, beginning the erosion of minority rights.

You're creating a much more polarized body over the long term. So, if you think partisanship and polarization are in short supply, well, then this was a good move, because we're going to have more of it, I think, in the medium and long term.
Here in the real world, of course, the Republicans have transformed themselves into a crassly segregationist party and are too busy howling at the moon to worry about all this responsible government nonsense. But Bobo and Sleepy Mark both cherish one of the Scriptural tales of High Broderism, the one about how Tip 'n Ronnie (Democratic House Speaker Tip O'Neill and Republican President and Saint Ronald Reagan) used to argue over politics during the day and then get together and have a bear together that evening. One enduring legacy of the Tip 'n Ronnie beer drinking is that the Social Security retirement age was raised from 65 to 67. Which is fine by Mark and Bobo, since they both support the Grand Bargain for "entitlement reform" to cut benefits on Social Security, Medicare and Medicaid again.

When Mark is off, they usually fill his spot with Ruth Marcus, Bobo's Washington Post colleague, who by Beltway standards is somehow considered a liberal. She usually begins her responses by some form of, "I agree with David ..." It's a real Bobo and Bobita show when she's on. In her column, Bobita was, of course, agreeing with David (In filibuster fight, the Democrats go too far Washington Post 11/21/2013):

Still, the Democrats’ move is a mistake.

Not when it comes to executive-branch nominees — eliminating the filibuster in such cases makes complete sense. A president, Republican or Democrat, deserves deference in deciding how to staff the government. If a president picks the wrong person, that’s his or her problem. The harm won’t last long. ...

Judges are different, and this is where the Democrats erred. Their move — unlike previous proposals — eliminated the filibuster except for Supreme Court nominees. The simple reason for subjecting judicial nominees to a higher hurdle for approval: lifetime tenure. ...

... eliminating the possibility of filibustering lower-court nominees will fundamentally change the calculus of judicial appointments. Presidents will understand that in picking judges they have to count only to 50, which will embolden them to press the envelope, ideologically and otherwise.

Republicans will be empowered to pick more conservative judges, Democrats more liberal ones. Perhaps this will make for a more vibrant judiciary. I fear it will create one that is more polarized and possibly less well-qualified.
Because judges might start doing things like handing the Presidency to the loser in national elections, overturning long-standing and important precedents on issues like segregation and campaign finance on narrow majority votes, and so on.

If the Democrats approve Republican Presidents' judges loyally and the Republicans routinely block Democratic appointments to the bench, that would certainly avoid that awful partisan division. The whole federal bench would be Republican. And I'm sure the Republicans will only approve judges of the same high quality as Clarence Thomas and Antonin Scalia.

Bobo himself used a similar gambit on the Newshour:

I would say the most defensible thing that the -- part of this law is the White House personnel. I agree with Mark on that. The president really should have wide leeway to choose who he want. I can see sort of getting rid of the 60-vote thing for the administration personnel.

I find it much harder to defend the idea of getting rid of it for the judges. And, believe me, the Supreme Court judges, that will be -- that 60-vote thing will be gone in short order because of this.
This way Bobo and Bobita can give a nod to the Democrats - gee, maybe had more of a point on Executive Branch appointments - but actually supporting the Republicans on judicial nomination part, which is the more critical one. Shields does his version of the same thing. High Broderism at work! Both sides are blame (but the Dems a little more). And the priesthood of the order get to mourn for the decline of sacred Bipartisanship.

James Fallows provides a perspective on the filibuster from someone who's more in touch with the real world, California Gov. Jerry Brown (California's New 'Problem': Jerry Brown on the Sudden Surplus, and the Filibuster The Atlantic 05/26/2013):

We can't have a country based on the 60-vote standard. This is serious.

We've never had to have 60 votes for appointments or day-to day-decisions. Really, you can't govern that way. That's a radical change.

How can you govern? Does England have 60? [JF note: Obviously a rhetorical question. His point is that the U.S. has the drawbacks of parliamentary democracy, including political polarization -- without the benefits, namely the ability to get things done.] I think that 60 votes could end America's ability to govern itself. We have to get rid of it.

That 60 votes is bad.
The US Senate includes two Senators for each state. They are popularly elected. But the Senators' representation is based on state, not population. Utah has just as many Senators as California or New York. So the Senate has a built-in over-representation of smaller, more rural states as it is. And those states tend to be more "red" in the exceptional American political color-scheme: more conservative and more Republican. The filibuster rule gives an even smaller portion of the general population the ability to block any legislation and Supreme Court appointees, which are still subject to the rule.

It needs to be abolished for those things, too. But I don't want to detract from the Harry Reid's and the Senate Democrats' real accomplishment this past week. It's very good to see.

Gerard Magliocca in The Not-So Nuclear Option Balkinization 11/21/

The Senate today voted to change its rules and end the power of the minority to block a judge or an executive nominee through a non-traditional floor filibuster. I applaud this change, as readers of the blog know that I am a critic of modern filibuster practice. It is worth noting, though, that all this change does is bring us back to where we were about ten years ago. Filibusters of lower federal court and executive nominees were basically unknown prior to the Bush 43 Administration.
Stan Collander's Nuclear Option Increases Chances Of Another Shutdown, Sequestration (Capital Gains and Games 11/22/2013) raises the question of how this will affect the Republicans' approach to the upcoming rounds of sequestration and debt-ceiling decisions:

I have talked for several years about how the tea party sees working with Democrats (and some non tea party Republicans) as collaborating with the enemy. It thinks of compromise in religious terms ... as "a sin."

The Senate's action yesterday didn't just reconfirm that to the tea partiers, it almost certainly exacerbated it. If they didn't before, the tea party certainly now thinks of the Democrats either as a tool of the devil or the devil incarnate.
I'm guessing that Reid took this prospect into account in the filibuster vote. I think he and the Democratic Caucus in the Senate have reached a point - if not a tipping point, at least a moment - where they just got tired of pretending the Republican Party is acting as anything but a wrecker Party in Congress.

Collander seems more bothered by that prospect than I am. That's because I expected the Republicans to be hardline obstructionists on those negotiations anyway. Reid's removal of the filibuster for non-Supreme Court appointments are a clear sign to any Republicans still thinking soberly enough to see it that he could further undercut the Republican institutional power in the Senate by getting the Democratic majority in the Senate to abolish the filibuster for legislation, as well.

It's also important to remember that abolishing the filibuster for nominations is a real victory for the Democrats. A huge part of the Republicans' strength the last few years has been to exploit President Obama's obsession for bipartisan solutions to slap him and the Congressional Democrats around on one thing after the other. It is very good to see the Democrats strike back in a visible and effective way on this. And the whining from Republican blowhards like Rush Limbaugh and Rand Paul emphasizes that it was an effective strike. It's something that Democratic progressives have been wanting to see for a while.

Joan McCarter addresses the likely Republican counterstrike over the budget and debt-ceiling negotiations that Collander references (The potential silver lining to the post-nuclear Republican obstruction Daily Kos 11/22/2013). She agrees that Republican obstruction could get worse, but will a skeptical qualifier about how much worse could we expect them to be than they already are:

If there's one thing that's a given that the Senate will experience post-going nuclear, it's ongoing and probably even escalated Republican obstruction in other areas — if it could get worse, that is. That's a given, and a given that Senate Democrats have been very much aware the whole time, and won't be surprised to see. They will still use up every bit of debate time they can wring out of the still-existing rules and procedures to delay every nomination for as long as they can. They will still filibuster every piece of legislation for whatever reason they feel like.
She points out that Republican efforts to block judicial nominees will likely shift to the Judiciary Committee now, which is likely to be a good thing because the Reps will have to air their frivolous reasons for opposing the President's qualified nominees:

But now Republicans are going to have come up with real, valid, substantive reasons to oppose a nominee. They won't be able to do it just to block President Obama, or as in the case of Robert Cordray at the Consumer Financial Protection Bureau, to nullify some law they don't like. If they really want to stop a nominee now, they're going to have to bring something real, and that's nothing but good for our government.
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