You have to love Sen. Chuck Schumer’s (D.-N.Y.) chutzpah. Schumer opines confidently that the Constitution doesn’t require a simple majority vote for advice and consent. The fact that our fundamental instrument of government includes seven instances, not including confirmations, where a super majority is required would naturally mean nothing to Schumer, who admits that he has never practiced law in his life.
But a few conservatives agree with Schumer that judicial filibusters are not unconstitutional. Some oppose Senate Majority Leader Bill Frist’s (R.-Tenn.) proposal to end judicial filibusters by simple majority vote. Thankfully, no one on the right has waxed romantic, like the New York Times, about the ageless filibuster, in large part because its pedigree is far from noble. While senators have always found ways to delay, until 1806 the Senate ended debates with the approval of a simple majority. For the next 100 years, senators spent more time trying to return to that democratic practice than filibustering anything. That includes the great orator Henry Clay. In 1841, he tried twice to restore ending debate by a simple majority vote. Between 1850 and 1893, there were nine attempts to restore a simple majority vote to end debate. In 1917, the Senate adopted “cloture” to end dilatory debate, and in 1949, arguably extended use of cloture to nominations. Even so, from 1925 to 1995, there were 24 bipartisan attempts to restore simple majority cloture. In fact, for most of the 20th Century, the filibuster saw only hostile reduction, mostly by Democrats.
So what are some of the arguments from the right we have heard so far? Some want to preserve our ability to filibuster liberal judges. Bad ideas die hard. It isn’t just that failed attempts to filibuster President Clinton’s judges showed that Republicans have neither the desire nor the unity to do so, they shielded Republican centrists from prior pressure and later accountability for the vote that mattered–confirmation, not cloture.
Some argue that we should let Democrats filibuster nominations because the issue is helping Republicans win elections. I’ve known that to be true longer than most, but I also know that reaction to Democrat obstruction did not come without effort or pain. It is not a gift that will keep on giving. In 2004, Senate Republican efforts on judicial nominations amounted to letting the filibusters go to double digits. If Senate Republicans suffer from attention deficit disorder, our base suffers from repressed rage. Republicans cannot whine for now the fifth year without inviting a backlash against us.
Remarkably, skeptical conservatives have chosen the weakest argument to trumpet the loudest. We are asked to fear that Frist’s challenge will threaten legislative filibusters. But filibuster history shows that Frist is hardly first. In two centuries of attempts to restore simple majority cloture to end debate, Frist’s proposal is the first one to limit itself explicitly to nominees. Today filibusters are, in any case, far from the bulwark they once were. Stealth filibusters have made the Senate the greatest shell game in the world. But Frist’s challenge is not threatening. Moreover, it is hard to imagine what single piece of legislation conservatives fear so much that overcomes concern for the independence of the judiciary.
If Frist removes the 60-vote cloture device from debate of nominees, what will replace it? Whatever option Frist takes, he will have to provide a replacement method. He might offer his resolution from the 108th Congress requiring a de-escalating cloture requirement that ends with a majority vote, or he might ask the presiding officer to restore simple majority cloture.
Of course, all these are trifling issues. Every conservative must understand that opportunities to impact history come rarely. Continuation of the filibuster stands to threaten President Bush’s ability to name a Supreme Court nominee around whom conservatives can rally. And the failure to confirm such a strong nominee may be the end of some political futures of senators, both centrist and conservative.
Read Michael Hammond’s case AGAINST ending the Democrats’ obstructionism here.
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