Baseball Crank
Covering the Front and Back Pages of the Newspaper
May 17, 2005
POLITICS: Senate Smart Bomb

With the showdown on judicial filibusters escalating, Republicans have an opportunity rare in Washington: they possess the raw political power to do essentially whatever they want, in the sense that on most or all of the filibustered judges they possess the 51 votes neeed both for confirmation and to change the rules to eliminate obstacles to confirmation. The debate has thus focused on two questions about how they should use that power: whether they will suffer an electoral backlash, and whether changing the Senate rules or otherwise ramming through nominations will come back to haunt them when, some day, the Democrats regain a majority in the Senate.

Let's review the options:

1. The "Nuclear Option": Changing Senate Rules to require 51 votes rather than 60 for "cloture" of debate on a judicial nomination, i.e., to break a "filibuster" and force a floor vote.

Pro: Will eliminate possibility of Democratic filibusters for the remainder of Bush's term. This is particularly appealing now that Harry Reid has threatened to filibuster a Bush Supreme Court nominee. (Link via Daly)

Con: There are three downsides here. One is that Republicans will suffer at the polls. I'm not convinced of that - breaking the filibusters should help solidify the conservative base, and couldn't inflame the liberal base more than it is already. And to the extent that moderate swing voters pay attention to judicial fights at all, the GOP has probably taken its lumps with them already for the nomination of conservative judges, which Bush has broadcast widely. (Although I will concede that the phrase "nuclear option" is the winningest Democratic spin since the government shutdown). Certainly, almost every Senate race in which judicial nominees was a major issue went to the GOP, except for Mary Landrieu and Ken Salazar, both of whom got elected/re-elected in part by making promises of support for votes on judicial nominees (promises they never intended to keep, but that's another story).

The second is that the GOP would be disarming itself in future battles over the judiciary. First of all, I don't buy this, because it assumes that if Republicans don't change the rule, Democrats won't either. Yeah, and I have a bridge to sell you in Brooklyn. Banking on future Democratic good faith is foolhardy in the extreme. Democrats aren't even pretending to promise that they won't support the same thing later; consider their past track record on changing the filibuster rule to suit their purposes.

The third concern is a related one, one that is of more concern and is openly discussed by liberal pundits: that disregarding the availability of the filibuster for judges will give political cover to wholesale elimination of the filibuster for legislation. This concerns me more, because the filibuster as a brake on bad, complicated legislation is a check and balance that conservatives have depended upon in the past (see: Hillarycare), and may again. Unlike the judicial filibuster, which I suspect Democrats will bulldoze as soon as they are in position to benefit from doing so, eliminating the filibuster entirely would be seen as a radical move even by the media - but perhaps less so if the filibuster were completely eliminated for nominations.

The filibuster for legislation is, as a matter of policy, more sensible - while Mickey Kaus argues that the filibuster's compromise-forcing function is more important in judicial nominees, I disagree because compromises in legislation are easier to reach - and more likely to yield intended results - because both sides can be assured of what they are getting. Judicial nomination compromises often wind up a lose-lose situation for principled conservatives; should we accept a system in which "compromise candidates" wind up as Souter or Blackmun?

Bottom Line: I'm willing to live with the "nuclear option," but I'd prefer the more targeted solution I discuss below.

2. The "Conventional Warfare" Option: A number of commentators (see here) have suggested that Republicans should force the Democrats to live up to their rhetoric and actually stage an old-fashioned, talk-to-exhaustion filibuster. I'm not sure if this requires an actual rule change or just an announcement or interpretation of the rules, but you'd need a majority of the Senate to enforce it.

Pro: Filibustering is hard work, and Democrats would quickly get exhausted by the talkathon. A filibuster would spotlight the issue, putting pressure for a resolution that the GOP could use to its advantage.

Con: Several. First of all, the media would likely buy the Democrats' argument that the GOP was shutting down the government if the old-time filibuster ended up squeezing out all other Senate business. Second, anything that raises the public stakes makes it harder for Democrats to visibly back down. Third, I gather that - although I've forgotten where I read this - the old rules would only require a single filibusterer to be present, while the whole majority would have to be there (although I see no reason why that couldn't be altered by rule change). And when a Supreme Court nominee comes up, the Dems would never budge.

Bottom line: This ain't gonna happen, because it's physically taxing on the Senators themselves, none of whom wants to be martyred to a debate about judges. I'm also less and less enthusiastic about how it would play out in the media.

3. The 60 Seats Option: Change nothing, and use the judges issue again in 2006 in hopes of getting to 60 seats.

Pro: Judges have been a winning issue, and the zero-sum nature of the issue keeps social conservatives motivated and mobilized. The map favors the GOP: Republicans are defending 15 seats to the Democrats' 18, one open seat to the Dems' three, and are defending fewer seats in states they lost in 2004. A gain in Senate seats is very possible.

Con: A decent chance at a net gain, yes; but 5 seats would be a shocker, and the most likely outcome is no more than a 1-seat net pickup, as both sides have their vulnerabilities and hurdles to clear. Local conditions (e.g., poor challengers) always reduce the number of seats truly in play, and sooner or later the trend against the incumbent party is bound to catch up with Republicans. In the meantime, nothing gets done. Plus, social conservatives may start to feel disenchanted if nothing out of Washington-as-usual gets attempted.

Bottom Line: Fear and greed both suggest that this option could happen, as nervous Republicans yet again kick the issue down the road. But the momentum and logic of the battle, plus Frist's presidential ambitions, makes this an unsatisfying outcome. Besides, how often do you get to rewrite the rules to fix the process? It's time to use that power.

4. Cut a Deal: Trent Lott seems to have taken a stab at this, but was swatted down by Bill Frist - cutting a deal where the GOP tables the rule changes but some of the nominees get a vote.

Pro: Get a few judges in.

Con: The underlying stalemate remains, the stakes escalate for a Supreme Court battle, and even the Democrats look hypocritical for changing direction on people they've tabbed as "extremists".

Bottom Line: The Senate loves deals, but I just don't see what's in it for either side to cut one.

5. The Advice-Without-Consent Option: Patterico suggested, back in November, having Republicans vote on non-binding resolutions of support to (a) formalize the fact that filibusters were blocking nominees with majority support and (b) force fence-sitting Democratic Senators to come out from behind the procedural battle and admit that they oppose these nominees.

Pro: Put people on the record.

Con: Voting to filibuster a nominee in perpetuity is basically a stronger form of voting them down. Can we shame the Democrats into changing positions? I don't think so - the liberals are proud of what they're doing, and the rest are already cemented in place by intense pressure from party leadership. And you might lose a few liberal Republicans who oppose the filibuster but don't support the nominees.

Bottom Line: This should have been tried before the elections. But it's a PR stunt, not a solution.

6. The Smart Bomb Solution: OK, we've been through the rest. Some of the options above are ones I can live with. But the GOP shouldn't be satisfied with a solution that's temporary, and shouldn't demand one that goes further than necessary to fix the problem. And thinking long-term in politics means not only blocking tactics abused only by the other side, but removing powers you yourself have used - like tying up nominees in committee and "blue slips" that enable single Senators to hold up certain nominees - if they have contributed to the overall problem.

What's the problem? Not the filibustering of judges per se, but the open-ended, indefinite delay of floor votes on judicial and other nominees, especially by a minority of the Senate. The filibuster is a new and extreme addition to the arsenal of delay, one not used before; the lone precedent Democrats can cite is Abe Fortas, but that was a short-term filibuster (with bipartisan support, of an already-sitting Justice) designed at getting more information about ethics charges. That's a function we shouldn't preclude: the use of the filibuster, of delay in committee, or even of "blue slips" to delay a nominee long enough to get information and build opposition.

But there is a world of difference between the use of parliamentary delaying tactics to allow the opposition to coalesce and using those tactics to allow the losing side to delay any action at all once the lines of support and opposition have hardened. Neither the Constitution nor the historical advice-and-consent practices of the Senate (by "historical" I mean, more than the past three Administrations or so) provide any support for a minority power to perpetually obstruct nominees with majority support. The judicial filibuster is not, perhaps, a wholly new creation, but it's a plant that has grown up rapidly in recent years to obstruct and choke off all the other traditional growths around it. The best solution isn't to pull the old fellow up by the roots but to prune it back to reasonable size.

There are various ways to do this, but I would suggest a sliding scale: initially, 60 votes needed for cloture, for forcing nominations out of committee, or for overriding a "blue slip." Once the first cloture vote fails, the threshold starts dropping, say, by one vote every 30 days or some such until you get to 51. The goal should be to ensure that every nomination (except for those truly made at the last minute) gets an up or down vote within about a year, sooner of course if there's broader support or if the White House can successfully exert pressure for a vote, as will generally be the case for a Supreme Court vacancy.

This is a stable solution that could become permanent. It meets the needs of majorities while preserving a role for the opposition. It also, of course, allows a Senate of one party to bottle up nominations by the other party, which was the source of tension between 1991 and 2002, a tension many voters thought they were resolving by turning over the Senate to the party of the President. But the descending threshold ensures - I think* - that such opposition will have to go on the record repeatedly and will have to be uniform across 51 votes, enabling the president to take his case to the people and target the wobblers. (* - This assumes that the minority can make a motion for cloture. I believe that's the rule but I could be wrong).

Posted by Baseball Crank at 7:31 AM | Politics 2005 | Comments (5) | TrackBack (3)

Actually, it was Trent Lott who came up with the term "Nuclear Option," not a Democrat.

Posted by: MR at May 17, 2005 10:02 AM

And Trent wonders why nobody wants him as leader.

Posted by: The Crank at May 17, 2005 10:10 AM

Hey, careful that idea makes sense. I think the real heartburn with the current filibuster set-up is that it is not being used to continue debate as originally intended. A limited filibuster like that has a purpose in putting the brakes on when a legislative body is rushing to pass laws especially if these laws are in response to a recent event. However, it currently is being used by the losers of elections to keep the winners from governing.

The way the Dem's want judicial nominees is this:
If there is a Democrat president he gets to name liberal judges (Ginsberg from ACLU)
If there is a Republican president he has to name judges the libs are happy with as well.

Well, damn if that is the way it's going to work, why bother with elections. We can let the poliburo (DNC) tell us who is in charge and we can do away with the annoying political ad's.

Posted by: largebill at May 17, 2005 12:19 PM


While I mull over your idea further, I have a question about it as a practical approach to the current state of affairs--

Namely, what would the mechanics or procedures be for "making it so"?

I don't see a path to it.

Posted by: Gerry at May 17, 2005 1:12 PM

I don't pretend to be an expert in Senate procedure, so perhaps you are right that there are technical problems with amending rather than ripping out the rule. I still think it would be the wisest endpoint solution.

Posted by: The Crank at May 23, 2005 1:12 PM
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