Filibuster Nation

Ever wonder why Americans hate politics? The answer was all over C-Span today as the U.S. Senate bloviated for its second day over Judge Priscilla Owens… and as both parties scrambled for position in the fight over filibusters?

That’s right, filibusters… our new pressing national crisis. The make-or-break matter that's on the lips of every working America.

Not the deteriorating war in Iraq that has cost nearly 2000 American lives and hundreds of billions of dollars.

Not the 200 U.S. companies that defaulted on their employee pensions in the last 12 months leaving hundreds of thousands of America families with a diminished future.

Not the 45 or 48 or 55 million Americans who have no health care.

Not collapsing public schools.

No, my friend, it’s all about f-i-l-i-b-u-s-t-e-r-s.

Why wouldn’t anyone with a brain hate politics?

In the heat of Thursday’s debate, Pennsylvania Sen. Rick Santorum, the third ranking Republican, linked the "hubris" of Democrats to Adolf Hitler saying:"The audacity of some members to stand up and say 'How dare you break this rule' -- it's the equivalent of Adolf Hitler in 1942 saying 'I'm in Paris, how dare you invade me. How dare you bomb my city. It's mine.' This is no more the rule of the Senate than it was the rule of the Senate before not to filibuster. It was an understanding and agreement, and it has been abused."

Then again, a few months ago, Democratic Senator Robert C. Byrd linked the threat by Republicans to use the majority to bar judicial filibusters to the Nazi's use of majority power to push through their agenda in the 1930s.

So, guess that’s settled. According to each party, the other is full of Nazis.

That might be, indeed, be ludicrous. But both parties are full of something else.

The Republicans are attempting to rewrite their own history, lying to themselves and everyone else, in threatening to abolish the filibuster as Josh Marshall ably argues. It’s a cynical power-grab that reeks with demagogy and, to use Mr. Santorum’s term, hubris.

The Democrats, meanwhile, have chosen this issue to make a life-and-death stand? This is where the activists want to invest their political capital?

Fighting to oppose objectionable presidential judicial nominations is an honorable and worthy cause—but it’s about number seventeen on what should be a list of real political priorities. This is not going to galvanize some new Democrat majority. Quite to the contrary. No one argues this line better than Slate’s Tim Noah:

The Democrats are going to the mattresses over the Republican plan to disallow filibusters against judicial nominees. The intransigence seems to be mainly on the Republican side, but as I've noted before, the interests of the Democratic Party (not to mention little-d democracy) would be best served if the filibuster were disallowed for all legislation. That's because someday the Democrats will be in power again, and they will want to pass legislation enabling a muscular federal government to solve, or at least address, the country's problems. In grooving on the filibuster, Democrats show that they are unwilling to consider any such future…I never thought I'd see the day when preservation of the filibuster became a grass-roots liberal cause, but that day seems to have arrived. College students are staging mock filibusters at universities across the country. Once upon a time, student activists decried the immorality of the Vietnam War and U.S. investment in the apartheid regime in South Africa. Their protests helped change the world. Today student activists are defending a parliamentary rule that enabled southern bigots to block civil rights legislation for nearly a century!

They're defending demosclerosis! They're defending the right of the minority to thwart the will of the majority! Oh sure, it all has something to do with bad judicial nominations, too. But the street theater isn't about bad judges. It's about Robert's Rules of Order.

Count me out.

I know all the counter-arguments. I know very well what kind of political power can be exerted by federal judges (and needless to say Supreme Court justices). I know what kind of fringe characters some of the Bush nominees are.

I also know that when you lose elections, the other side wins and then makes the appointments. Those are the breaks. That's why the side that loses, loses.

The best way to get better judicial nominees is not to defend to the death the most anti-democratic of parliamentary maneuvers, but rather to start figuring out how to win electoral majorities.

Comments

[Chris]

That's right, Marc. Knock it to 'em.

What a bunch of losers, those democrats. Don't they know they are suppose to roll over and play dead now that they lost the election. The nerve! I can't believe they would start acting like an opposition party, after the drubbing they took in November.

Good thing you are here to set them straight. Hopefully Harry Reid reads this blogs, and gets his head, right, and quick.

[Marc Cooper]

Not what I said Chris. Leading a charge to defend an obstructionist quirk in roberts rules of order is NOT acting like an opposition party, sorry.

[Michael Turner]

Byrd and Santorum's respective rhetorical ambulations into the nuclear-trigger tripwire of Godwin's Law are subtly different. However, both analogies are off base.

Fighting the filibuster is not like dealing with a Nazi majority in Congress. Nor is favoring it like lending an ear to Hitler's objections about the allies invading *his* France.

No, I think any serious debate would instead be about this: how filibusters (or opposing them) are like shipping Jews to Auschwitz to be turned into lampshades. A moment's thought should suffice to bring you to the necessary epiphany. Admit it. You're smacking your forehead. Why didn't you see it before?

That's not to say that this leaves no room for reasonable people to disagree. I briefly anatomized my dual analogies to a friend of mine, and he sternly objected. "No, Michael," he said, "'Auschwitz'?! Reboot your brain! Favoring or opposing the filibuster is better compared to being a pompom girl cheering on the daily operations of Treblinka."

And he explained why. In gut-wrenching detail. Wow. That was a lot more than I wanted to know about making soap from fat. But soap will be made, and guess who will be washing?

After hearing him out, I had to admit he might have a point. Maybe I fell for the wrong death camp. Quick: what's the first one *you* usually think of? It's forgiveable, don't you think? And, after all, my friend knows the ins and outs of the Holocaust much better than I do. Of course he saw the flaw first.

At any rate, that's my two cents on how to get this debate on a more even keel. Thanks for listening.

[Michael Turner]

Erratum: I used "filibuster" above where I should have qualified it as "filibuster for opposing judicial nominees." Obviously, favoring or opposing the filibuster for everything is another kettle of fish; it's better compared to Stalin's starving of 8 million Ukrainians.

Michael Turner regrets the error. This and other bonehead screwups in his postings will soon be hosted at a new blog called "Redact! Redact! Redact!"

[too many steves]

While agreeing with your short list of important issues worthy of debate and action I have to say that this small 'c' conservative is quite pleased to have the Senate debating filibusters because it means they aren't screwing up something other than their already piss-poor reputations.

And isn't there a rule that says the invocation Nazi or Hitler analogies in an argument leads to immediate loss of the argument by the offending party?

The other part of this whole filibuster debate that I like is the idea that, should the Republicans exercise the nuclear option and remove the filibuster as a tactic to stop approval of a President's judicial nominees, they will then be unable to use it when the day comes that a Democrat is President and the Democratic Party is the majority in the Senate. Short sighted dopes.

[reg]

Since life-time confirmation of these wacko judges like Rodgers Brown are what the Senate Democratic minority is faced with - not resolving medical care, pensions or curing cancer - they'd be idiots to relent on an opportunistic rules change to give the GOP temporal advantage on a single issue . The lousy records and rhetoric of the handful of Bush appointees that the Dems have determined to make a stand on are being debated more effectively in the context of this filibuster brouhaha than if the Dems rolled over on Senate rules. As for the filibuster, if the Senate wants to vote to end it in, say, six or ten years, when no one can predict who will be the majority and it's a principled issue rather than sheer power grab by a temporary majority, fine. There's also an argument - and a reasonable one - that adding a brake to the Senate process to protect the minority from being steam-rollered relentlessly on every issue is a good idea. Especially since the Senate majority rarely represents a majority of Americans. Certainly on the face of it, stopping these particular judges is standing squarely for the values of the American mainstream against the radical and fundamentalist right.

You've got a political tin ear, Marc. The public opposes this change by a fairly clear majority. The laundry list you've got of more important issues doesn't have chance in hell of a real Senate debate. Of course these issues need to be part of a long-term agenda. But the record of the Republicans in holding judgeships open under Clinton and bulldozing them through now that they've got near-complete control must be challenged for reasons of both politics and principle.

Oh, and let's do a little MoveOn-bashing while we're at it because...well, because we've really got nothing to suggest as a practical strategy other than a laundry list of abstractions. Frankly, that kind of sniping is pretty high on my list of streaming hot-air if not steaming bullshit.

This isn't a life-or-death stand. It's a political fight that matters in its outcome. To roll over would be succumbing to suicidal self-hatred - which is about all that some in the liberal corner have to offer apparently. Journalistic cynicism mixed with lefty idealism may make good copy, but it's also a perfect recipe for near-useless strategy when the chips are down. There's a hell of a lot wrong with the Democratic party, but their using every traditional tactic of the Senate to stand up to the GOP on these godawful judicial appointments isn't on the list.

(One of the beauties in opposing right-wing radical Rodgers Brown is watching the GOP haul out the race-card as they assemble a cluster of bigoted black preachers to help them hustle the right-wing agenda. It's just fun to watch when the Republicans try to get religion among African-Americans and are forced to rely on a handful of homophobes. It's also telling - considering all of the often-awkward photo-ops, parading of black children at Presidential events, throwing bones to obscure pulpit pounders, the paid partison pundits "of color", the high-profile political appointments, and mountains of hypocritical rhetoric - how impervious blacks are to the current incarnation of the GOP. Maybe it's because when right-wing hacks claim voter segments like "working-class", "church-going", "Southern", etc., African-Americans are, once again, not even counted, while traditionally racist organizations like the Southern Baptist Convention and Council of Conservative Citizens are treated like royalty.)

[reg]

If anyone thinks I'm being too harsh on Rogers Brown and the pietistic preachers who praise her, there's this fact, which I should have note above: In 2003, Brown was the only justice on the California Supreme Court to rule against recognizing the right of gay Californians to legally adopt their children. Brown argued that allowing a gay parent to legally adopt the biological child of their partner "trivializes family bonds."

Disgusting woman. Bigoted. Anti-family.

[too many steves]

The only principle involved in this foolishness is this: I win, you lose. There is no doubt in my mind that if the roles were reversed (minority/majority status) then so would the tactics and the arguments. And I see no problem with the legitimacy of the tactics being employed by both sides. The rehetoric, on the other hand, is laughable.

[too many steves]

pardon me, RHETORIC.

[reg]

"There is no doubt in my mind that if the roles were reversed (minority/majority status) then so would the tactics and the arguments"

Some of the arguments were reversed, but the actual tactics were not. In all of the years of Democratic majority, the filibuster was not eliminated from the rule-book of Senate procedure...regardless of sentiments expressed by some Democrats. For all of the powergrabs and corruption fostered by decades of Democratic majorities, the GOP has managed to outstrip then in just a few short years.

[too many steves]

Which speaks to escalation of the, um, situation, over time I think.

Republicans blocked Clinton nominees in committee because they were the majority (ie; they could and didn't need to filibuster). Prior to Clinton the Presidents were Republican so I wouldn't expect filibusters from the Republican minority. I don't know or recall what happened during the Ford and Carter terms but suspect it was much less acrimonious, at least that is what I've read and heard.

This is why I see it as a simple I win, you lose dynamic that is absent any underlying priciple - not upholding long time Senate tradition, Consitutional advise & consent, up or down votes, or minority rights.

[reg]

Actually many Clinton appointees (non-judicial) were forced to meet the 60-vote test by Republican Senators and a number of appointments were killed because of it - as ever, there's contradictory rhetoric and hypocrisy on both sides, but the actions of the GOP leadership in this instance are unprecedented and their hubris sets a new standard. I just don't buy the "moral equivalency" argument or that there's nothing here related to principle. Pure principle isn't the currency of the political realm under the best of circumstances, but that doesn't mean that a pure, unprecedented, partisan power-grab can be shrugged off as "business as usual".

[richard lo cicero]

Marc it would be great to debate the other issues but those are not on the agenda. What IS on the agenda is the approval of a handful of judges for the appeals courts who are really dangerous. Most cases end at that level, the Supreme Court hears relatively few so those people make a lot of the law. Janice Rogers Brown would repeal all the decisions of the late thirties that made the New Deal legal. I happen to like Social Security, the Minimum Wage, Child Labor laws Etc. Don't you? Yeah she's anti-abortion and that has James Dobson foaming at the mouth but its bait and switch. Just like Rose Bird was defeated on the Death Penalty and replaced by "pro-business" judges so these people want to repeal the New Deal while wrapping themselves in "the culture of life."

Another point. You are in NO position to advise the Democrats on anything since your sandbagging of them in 2000 for the Nader deception got us into this mess in the first place. The world would look a lot different in the 2nd term of a Gore Administration but that's the real world, not the fantasy world where serious issues are the only ones disussed but let us see - with Gore no Iraq war, a pro-labor administration, and progress on health care. But what do I know, I'm just another tool of the Dems who, with all their well known problems, are a viable party.

[modestproposal]

Think the filibuster issue, rightly or wrongly, has more legs than Marc gives it credit for. Why? Because it was fetishized by Hollywood as the very essence of American democracy in Mr Smith Goes to Washington, and has somehow captured the pop-cultural imagination ever since.

Yes absolutely the Democrats should be focussing on meat-and-potato issues, not procedure. Yes absolutely there is an argument to be made that filibusters are unhelpful to the democratic cause. (I never bought all that checks-and-balances, tempering the "tyranny of the majority" stuff; the place for reform is in the electoral system, not in the rules governing those already elected to the Senate, but that's another very long story.)

The point is, this is a country that trades heavily on symbolism. And the filibuster, eccentrically, brings tears to the eyes of patriots as they think of Jimmy Stewart and Frank Capra and all those travelogue shots of the Lincoln Memorial. It's a golden age of US politics that only ever existed on celluloid, but people think of it as a golden age nonetheless, and want to dream of recapturing it. This is of course a losing proposition in today's corrupted environment, but not necessarily a losing political proposition for the Democratic leadership on Capitol Hill.

[kaff]

The filibuster is at issue because Rev. James Dobson has demanded that it be eliminated. The motive is to clear the way for their radical judges. This is so obviously the case. The far right wants any obstacle to achieving their agenda nuked. This whole hurrah is more of the same pattern we've witnessed since the Terry Schriavo spectacle and the change in ethics rules to protect Tom DeLay If the Republicans don't get their way 100% then they make new laws, new rules, or break rules to change rules.
If they are successful in "nuking" the filibuster rule regarding judicial nominees, then what is to stop them from using this tactic on legislation too? Nothing. This issue is important because it deals with the concept of checks and balances and should be addressed before we move into other areas of business.

Isn't it amazing that while Bush, Rice, Rumsfeld, are encouraging the Iraq government to not supress the minority voices in their country we here in America are doing exactly that.

[Mavis Beacon]

Michael Turner remembers that Frist is pursuing a very fine principle – no filibusters for judicial nominees when the nominee will clearly gain approval. Of course, this pokes a rather large hole in Timothy Noah’s argument since nobody is proposing to get rid of the filibuster for legislative business, only for judicial appointments. Speaking strictly about judicial filibusters, I don’t have a problem with them. When Clinton was president and had a Republican congress he had around 65 of his appointments stymied. Now that we have a Republican congress and president only 10 have been stopped. Those numbers sound pretty reasonable and democratic to me.

I’m with you TooManySteves that Dems claiming to defend a sacred constitutional principle are spewing horseshit. On the other hand, the Republican tactics are really remarkable. There is a process for changing Senate rules, but since Republicans don’t have the votes to do that, Frist and co. are declaring the old rule unconstitutional. Even if the filibuster’s not some grand old tradition, declaring it unconstitutional seems like a very blunt and opportunistic use of our nation’s most holy document.

[mikey]

Speaking of Rick Santorum, why do so many Republicans (and some Dems) wear their hair with that ridiculous, Supercuts inspired harsh part to the side? Does it aid in distracing the public from "real issues?" Is it another symptom of homophobia, a fear that having any style may lead to sodomy?

[Mark A. York]

"And isn't there a rule that says the invocation Nazi or Hitler analogies in an argument leads to immediate loss of the argument by the offending party?"

Godwin's Law.

[Mark A. York]

The Republicans are complete hypocrits, but they're better at it than Democrats. That's what this is about: absolute power. But once you accept to the victor go ALL of the spoils, as Marc has, who cares what they do?

[Woody]

Santorum was on Laura Ingraham this morning and admitted that his Hitler comment was made without thinking and has apologized for it. But, of course, all you probably listen to Laura Ingraham, too--which is a lot like Radio Nation with a woman's touch.

I disagree that there are other items on the agenda that should force the filibuster to the back burner. In a nation of laws you need an agreed upon system for the proper conduct of business. If the system breaks down or has a flaw, then it should be corrected immediately so as to allow the proper operation of the machinery for passing future laws and authorizations.

The system is broken down because no one knows if it takes 51 or 60 votes to garner approval--and, there is a big *difference. (The difference is at the bottom if you want to think about it.)

In this case, I sincerely believe, without any prejudice, that the Democrats broke a gentlemen's agreement on Senate procedures. People can talk about precedence, etc., but I hear isolated instances and instances that are not similar to this. What is different in this case is the extreme that the Democrats have gone--and, it doesn't matter that it involves judges or highways.

If this was baseball, and what isn't like baseball, the Democrats would be mad that the spit ball is being made illegal. Each side has sneeked one in from time to time, but the Democrats have made that one of their primary pitches. So, now we'll have to ban spit balls because they abused the understanding.

* Answer 60-51=9

[REG]

Woody, with all due respect, there's nothing in the opinion you wrote on Senate procedures and the Democrats makes a bit of sense or is rooted in either factual analysis or historical precedent. That said, I appreciate your consistency...

[reg]

I think that the GOP would be more honest in their appeal to the fundamentalist base if, rather than declaring the filibuster unConstitutional, they simply declared it in violation of The Ten Commandments.

[too many steves]

Ah, Godwin's Law. Thank goodness it's a law and not just a rule or, worse, a guideline.

[reg]

I would also like to add, in this serial post, that claiming that anyone making comparisons of their political opponents to Hitler is abusing free speech is...well, it's like the Nazis burning books. It's sending WORDS to the gas chamber. It's creating an Auschwitz for metaphors and similes. It's setting a verbal Reichstag fire. And, unless it's done with torchlight parades, martial music and lots of cool uniforms, it's just a cheap shot.

[micki]

Everyone, except madmen and fools, knows that nuclear war would be an unprecedented human catastrophe.

Everyone, except madmen and fools, knows that the "nuclear option" and the resulting decimation of the filibuster would be an unprecedented catastrophe for the balance of governmental powers. We would be facing a "nuclear winter" of a different kind.

For two centuries, the tradition of the filibuster has been supported to promote cooperation and compromise. Leaders have recognized the dangers of one party control and the importance of protecting the rights of the minority.

We are in for a nuclear winter if the Fristians are successful with their nuclear option. Our nuclear winter after the smoke and dust have settled would bring a period of *cold* in our country. The *low temperatures* in the Senate would seriously threaten our freedoms and result in prolonged *darkness* that could obliterate, and turn back the clock, on women's rights, civil rights and the environment.

Those fools and madmen who trivialize, or minimize, the impact of the nuclear option on our country's future, will find themselves - and us - out in the cold of a nuclear winter if Frist & Company get their way.