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Bring Back the Filibuster, For Real:

Professor David RePass thinks we have too many "phantom filibusters." As a consequence, there is a de facto sixty-vote requirement for passing legislation in the Senate. While I disagree with Professor RePass' claim that the "phantom filibuster" is "unconstitutional" -- the Senate clearly has the authority to set its own internal rules -- I do think that "real" filibusters, in which the minority has to take the floor to prolong debate and stave off a vote, are preferable to the current practice. So where was Prof. RePass when "phantom filibusters" were used against President Bush's judicial nominees?

Related Posts (on one page):

  1. On "Real Filibusters" - RePass Responds:
  2. Bring Back the Filibuster, For Real:
Dave N (mail):
So where was Prof. RePass when "phantom filibusters" were used against President Bush's judicial nominees?
I will take a wild guess and say, "Cheering them on."
3.2.2009 1:03pm
bobfromfresno (mail):

So where was Prof. RePass when "phantom filibusters" were used against President Bush's judicial nominees?

Probably the same place most "conservtives" like yourself were when they were silent about Bush administration practices that are suddenly objectionable after January 20.
3.2.2009 1:04pm
Steve:
Considering that the number of Republican filibusters since 2006 easily dwarfs the handful of Bush nominees who were filibustered by the Democrats, it makes perfect sense to me that someone who believes "we have too many phantom filibusters" would choose now to speak up.
3.2.2009 1:06pm
Another Kevin (mail):
An even commoner phenomenon nowadays is the practice of a single Senator delaying a vote indefinitely by making dilatory quorum calls. The Senate rules, as enforced, essentially allow the quorum call (which delays debate for fifteen minutes every time it's raised) to turn into a "one-man filibuster."

The fix for dilatory quorum calls, in turn, is pretty simple. If a second quorum call is made without any other substantive business intervening, turn it automatically into a call of the house. Let the Senator who has made the dilatory quorum call answer to all the absent Senators who appear in irons.
3.2.2009 1:14pm
Dave N (mail):
Steve,

Do you have an actual number as opposed to a talking point for the number of filibusters?
3.2.2009 1:15pm
Redman:

Call a cloture vote first thing when a matter comes to the floor which the majority believes will not garner the necessary 60 votes to cut of debtate. If there aren't 60 ayes, then withdraw the bill.
3.2.2009 1:16pm
Peter A (mail):
I am a Republican, but I hope Dems get rid of it. The filibuster has caused real damage over the last thirty years, because parties in control of the Senate cannot pursue their agenda and it is hard for the public to hold people responsible. When Reps were in control of the Senate they could not pursue their agenda, or professed agenda, of cutting the size of govt because any real cuts never had a hope of surviving a filibuster. The best thing that could happen to Reps is if the Dems passed everything they wanted, and abolished the filibuster in the process. Fat chance. The filibuster is the strongest weapon the Washington establishment/public employee industry/federal pol machine has in the battle to protect itself against angry taxpayers.
3.2.2009 1:17pm
Tony Tutins (mail):

I agree the majority party should always force the minority to take a stand. From what I've been able to find out, only "fear of a phantom filibuster" kept then-Senate Banking Committee leader Shelby from sending S. 190, the "Federal Housing Enterprise Regulatory Reform Act of 2005" -- to provide Fannie Mae/Freddie Mac with independent oversight -- to the Senate floor.

Leaders should not be paralyzed by fear of what might happen if they act.
3.2.2009 1:22pm
A.S.:
RePass's article is incredibly simplistic, and not realy worth the page space was printed on.

It failed to address the main reason that the majority party doesn't insist on "real" filifusbters than the "phantom" kind: that a "real" filibuster is much, much harder for the majority party than the minority, because it is the *majority* (not the minority) that has to keep virtually all their members up all night.

During a "real" filibuster", the minority only needs to have one Senator in the Chamber at any particular time (reading the phonebook, or whatever), whereas the majority has to keep 50 Senators there (because otherwise there isn't a quorum, and everyone goes home).

If Sen. Reid wants to keep 50 Democrats up all night in the Chamber while one Republican reads the phonebook (and all the other Republicans are snug in bed at home), more power to him. But I doubt many Democrat senators are really in favor of that.
3.2.2009 1:23pm
bikeguy (mail):

Probably the same place most "conservtives" like yourself were when they were silent about Bush administration practices that are suddenly objectionable after January 20.

Not much to say really since Obama seems to be adopting so many of them. Campaign rhetoric is one thing, but reality, apparently, is something else.
3.2.2009 1:25pm
Arkady:
@ Dave N:


Do you have an actual number as opposed to a talking point for the number of filibusters?


Here's something:


In the 103rd Congress (1993-1994), 32 filibusters were employed to kill a variety of presidential initiatives ranging from campaign finance reform to grazing fees on federal land. Between 1999 and 2007, the number of Senate filibusters varied between 20 and 37 per session, a bipartisan effort. [Filibusters: The Senate's Self-Inflicted Wound ]


I'm not sure from this who's ahead in the filibuster sweeps, but the prevalance of the tactic is kinda dispiriting.
3.2.2009 1:27pm
Allan Walstad (mail):
The problem with filibusters of judicial nominees is that you actually have to get people into those positions to rule on legal cases. When it comes to other legislation, however, the easier it is to filibuster bills the closer we come to a supermajority required to pass legislation, which in my opinion would be a good thing. I for one don't generally want the party in power to be able to pursue its agenda all to easily, because all too often the agenda turns out to be war and expanded government. The Repubs stand for fiscal responsibility when out of power; once in control, they spend like crazy. The dems oppose militarism until they get power; then, as we see already with Obama, they go right ahead throwing US military weight around the world. Certainly spending bills should require a supermajority, and I often think if the Founders could see what's been done with their Constitution, one of the changes they would have made was precisely that.
3.2.2009 1:34pm
krs:

So where was Prof. RePass when "phantom filibusters" were used against President Bush's judicial nominees?

See point 2 of Prof. Kerr's Nov. 4th post.
3.2.2009 1:36pm
Thorley Winston (mail) (www):
Probably the same place most "conservtives" like yourself were when they were silent about Bush administration practices that are suddenly objectionable after January 20.


Okay, I'll take the bait, what are the specific "Bush administration practices" that you think I supported during the Bush administration that you think I now object to when Obama engages in them?

FWIW I think what we're seeing here is more some people pointing out that now that Obama is President, he's continuing some of the very policies that he objected to when he served in the Senate was busy campaigning for President.
3.2.2009 1:37pm
TyWebb:
A.S.,

I agree that "real" filibusters incur significant costs on the majority party, but such analysis is itself incomplete because it ignores the corresponding benefits in both procedure (i.e., making the minority stake their claim with that one senator in the chamber reading the phone book) and media messaging (i.e., changing the story from "Reid caves again" or "Dems fail to get 60 votes for important bill" to "McConnell pees pants while reading phone book" or "GOP delays passage of important bill"). Now, there are doubtless plenty of situations where cloture and the attendant requirement of 60 votes is appropriate, because the bill or objections to it are not high enough on the priority list to warrant a real fight. But there are also situations where a "real" filibuster would make a substantive difference to the Democratic platform, and Reid in those situations has categorically refused to take up the burden, instead caving almost instantly. I think it's a tactical mistake and a mark of his ineffectiveness.
3.2.2009 1:40pm
David M. Nieporent (www):
It failed to address the main reason that the majority party doesn't insist on "real" filifusbters than the "phantom" kind: that a "real" filibuster is much, much harder for the majority party than the minority, because it is the *majority* (not the minority) that has to keep virtually all their members up all night.

During a "real" filibuster", the minority only needs to have one Senator in the Chamber at any particular time (reading the phonebook, or whatever), whereas the majority has to keep 50 Senators there (because otherwise there isn't a quorum, and everyone goes home).

If Sen. Reid wants to keep 50 Democrats up all night in the Chamber while one Republican reads the phonebook (and all the other Republicans are snug in bed at home), more power to him. But I doubt many Democrat senators are really in favor of that.
Some have made that argument.

The counterargument is that for a real filibuster, the "one Senator" actually needs to stand up, in front of the cameras, and publicly exhibit what he's doing, with all the concomitant evoking of Strom Thurmond. He has to be willing to take the heat, show that he's thwarting the will of the majority.

The virtual filibuster allows it to be done essentially in secret, with no one person actually having to take responsibility.
3.2.2009 1:40pm
Oren:
There's another dimension to why we the Senate allows the virtual filibuster -- they don't want a single issue to hold up the business of the Senate. Thus, the Senate runs on two "threads", one of which conducts non-filibuster business (naming post offices, conducting investigations, etc...) and the other that is held up.
3.2.2009 1:41pm
Oren:

The counterargument is that for a real filibuster, the "one Senator" actually needs to stand up, in front of the cameras, and publicly exhibit what he's doing, with all the concomitant evoking of Strom Thurmond.

Under the current system, it's even more revealing. The Senate holds a vote for cloture and we get to see everyone that doesn't want the matter to go to an up-or-down vote.
3.2.2009 1:42pm
Gabriel McCall (mail):
Why not just make it so the requirement for passing bills through the senate is a three fifths majority, and not half plus one? Does the government really need to be passing laws that 49% of senators disagree with? If that government is best which governs least, I don't see any problem with requiring not just a bare majority but something approaching consensus before approving new legislation.

It'd be an interesting study to look at how many bills are passed with fewer than 60 votes and what proportion of them prove in retrospect to have been ill-conceived.
3.2.2009 1:44pm
TalkingHead (mail):
RE: the Senate's authority to change its own rules. That, of course, is an option. The problem is filibusters of attempts to change the rules re: cloture/filibusters, thereby entrenching the existing rules. The constitutional option, I believe, is an appropriate theoretical response to such attempts, but it's costly politically and I'm not sure one could realistically push the button on the theory that a new gang of 14 might step forward (but I suppose then that would solve the problem of filibusters, at least with respect to judicial nominees).
3.2.2009 1:46pm
ruuffles (mail) (www):
@Gabriel McCall

See California, present day, for an example of what supermajorities + gerrymanding + partisian ballots gets you.
3.2.2009 1:46pm
cboldt (mail):
-- I do think that "real" filibusters, in which the minority has to take the floor to prolong debate and stave off a vote --
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It doesn't work that way now, and never did. The Senate operates on unanimous consent, e.g., agree on when to conclude debate and take the vote. [This "general rule" is overridden for about 26 different subject matters, such as budget and war resolutions].
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If one Senator withholds consent, the vote won't happen on the proffered schedule. 16 Senators can call for a cloture vote, and on agreement of 60 Senators, the time for debate is limited.
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None of that includes a requirement to take the floor and debate. All it takes to delay a proffered schedule is a solitary "I object."
3.2.2009 1:51pm
The Unbeliever:
There's another dimension to why we the Senate allows the virtual filibuster -- they don't want a single issue to hold up the business of the Senate. Thus, the Senate runs on two "threads", one of which conducts non-filibuster business (naming post offices, conducting investigations, etc...) and the other that is held up.
Given the output of Congress over the last 2 decades or so, I don't quite see how this is a Good Thing.
3.2.2009 1:57pm
mantis (mail):

Do you have an actual number as opposed to a talking point for the number of filibusters?


The 110th Congress had more cloture filings in their first session than any previous Congress had in two years.

There were 139 cloture filings over the entire 110th Congress, breaking the record of 80 (103rd Congress, 1993-94), by a long shot.
3.2.2009 2:00pm
Gramarye:
Allan Walstad wrote:
When it comes to other legislation, however, the easier it is to filibuster bills the closer we come to a supermajority required to pass legislation, which in my opinion would be a good thing. I for one don't generally want the party in power to be able to pursue its agenda all to easily, because all too often the agenda turns out to be war and expanded government. The Repubs stand for fiscal responsibility when out of power; once in control, they spend like crazy. The dems oppose militarism until they get power; then, as we see already with Obama, they go right ahead throwing US military weight around the world.


I think this is a fairly unexamined preconception. The filibuster is used primarily as a tool of expanding government; it's not an equally double-edged sword. Filibustering measures that would actually reduce the size of government is more fatal because the majorities that would sustain such policies were always going to be thinner than those for expanding government, which is the natural inclination of most Senators as individuals as well as the Senate as a body.

Obama will likely get 60 votes for his $3.6 trillion budget. Can you even conceive of the degree to which the political pendulum would have to swing to get a 60-vote majority for any budget consuming less than 20% of GDP? For any proposal including private accounts for social security?

Also, while we're probably not going to see eye to eye on matters of military policy (I favor a robust defense budget and assertive defense policy), do you really picture the filibuster being the kind of weapon with which some brave Senator is likely to actually thwart a military mission in the foreseeable future?
3.2.2009 2:11pm
Dave N (mail):
Mantis,

But what does the 139 number prove? First, cloture can be sought more than once, so the fact there were 139 cloture filings does not mean there were 139 filibusters. Second, I don't remember any cloture filings on the federal judges that the Democrats "filibustered."
3.2.2009 2:15pm
Oren:

Can you even conceive of the degree to which the political pendulum would have to swing to get a 60-vote majority for any budget consuming less than 20% of GDP? For any proposal including private accounts for social security?

Americans would have to get significantly more fiscally conservative for that to happen. The vast majority did not like Social Security reform. That makes sense, in order to pass fiscally conservative legislation, you have to get a lot of voters to be fiscally conservative.

In truth, there are very few fiscal conservatives in the US, with the GOP itself being composed of quite a number of "expansionists".
3.2.2009 2:15pm
Connecticut Lawyer (mail):
Let's not forget that back when the Republicans were in power on the Hill, they considered doing away with the filibuster; if you recall, that was perjoratively labelled the "nuclear option" and was widely condemned by the MSM and the Democrats. Fortunately, enough Republicans realized that the wheel would turn someday and they would be in the minority and so they opted to keep the filibuster, even though that meant that a number of superbly qualified candidates for the bench were successfully filibustered by the Democrats. The wisdom of that decision is self-evident as the country confronts President Obama's headlong rush into a greatly expanded welfare state and crony capitalism.

By the way, I wonder why today's various and assorted proposals to get rid of the filibuster are no longer called the "nuclear option."
3.2.2009 2:18pm
Snaphappy:

Call a cloture vote first thing when a matter comes to the floor which the majority believes will not garner the necessary 60 votes to cut of debtate. If there aren't 60 ayes, then withdraw the bill.


Redman: You have to vote to bring a matter to the floor in the first place, and that vote can be filibustered.


Why not just make it so the requirement for passing bills through the senate is a three fifths majority, and not half plus one?


While one could debate the wisdom of that proposal, Gabriel, that's not the way the Senate is set up now.

I think what bothers people is we were taught that the filibuster is supposed to be this extraordinary thing like Mr. Smith Goes to Washington, but it has now become common for just about everything. I am irked when you hear, "The Democrats may not have the 60 votes needed to bring this bill to the floor" on the news, when what they really mean is that the dems don't have 60 votes to break the Republican filibuster preventing the bill from coming to the floor.

Of course, the reality is now that it effectively takes 60 votes to get anything done in the Senate. Gabriel, your proposal is effectively implemented. While we may disagree with that as a matter of policy (and I do, at least while my guys are in power), if you take a more zen view, it's not so bad. When I start to get angry about this, I think about the Democrats' brilliant/evil decision to eliminate recesses in the Senate so as to prevent Bush from naming any recess appointees. I know that, while perfectly consistent with the rules, would have pissed me off to no end if the sides were reversed, so it makes me less pissed about what the Republicans do within the rules while they are in the minority.
3.2.2009 2:19pm
Mayken (mail):
@ AS


But I doubt many Democrat senators are really in favor of that.


I know it is probably a waste of my time to point this out - I gather it is in vogue for some to do this deliberately - but Democrat is a noun. Democratic is an adjective. Therefor the correct phrase is Democratic senators... In contrast, Republican can be either a noun or an adjective, so Republican senators would be correct.
If it was a mistake, then please accept my apologies for playing grammar police - I was an English major, I just do that.
3.2.2009 2:22pm
Snaphappy:

perjoratively labelled the "nuclear option"


Yes, the perjorative term coined by Trent Lott.
3.2.2009 2:24pm
Allan Walstad (mail):
Gramarye, you may be right that a supermajority for seriously rolling back federal spending would be very hard to come by. I'm still concerned about trying to slow down Leviathan's growth rate. As far as how the Repubs and Dems behave when in power versus how they talk when out in the cold, I hope you will grant me that it's an observation not a preconception.
3.2.2009 2:30pm
Mayken (mail):
@snaphappy

perjoratively labelled the "nuclear option"



Yes, the perjorative term coined by Trent Lott.


Thanks for that. I was actually going to go look for who coined the phrase. I don't really see a lot of call from anywhere to remove the filibuster as an option. I may of course be missing it. I see much more of Dems calling on Reid to actually make the Reps use the real thing rather than this phantom version. I realize it isn't the Mr. Smith Goes to Washington style we all think of but making the minority party stand up for it's position is not a bad thing in my book. I and I think that is true whether my party is in power or not. Because it works for both sides. The party in power has to be able to say to the American people "this is worth all this time and effort" and the minority to say "this is really such a bad bill (or candidate) that it is worth potentially bad PR."
3.2.2009 2:34pm
Oren:

By the way, I wonder why today's various and assorted proposals to get rid of the filibuster are no longer called the "nuclear option."

I can't imagine Reid actually doing this. He's got no reason to either, since Specter, Collins and Snowe will probably work with him.
3.2.2009 2:38pm
Dan L (mail):
Personally, I wish they'd go back to real filibusters because I'm a sucker for political drama. But as tactical advice for the Democrats, Professor Repass makes a critical error: he assumes that Obama's agenda is as popular as he is. This is not very likely to be true, as we have seen already. A true filibuster would give the Republicans a perfect platform for their message and the drama of it would draw a lot of attention to it. It would focus the debate on policies, rather than personalities, and it could be cast fairly easily as a battle between the Republicans and Harry Reid--who is not nearly as popular as the president. Had a true filibuster gone for a week against the stimulus bill, for example, I think it would have been even more unpopular than it was. Remember: it was the Republicans who wanted to drag out debate; it was the Democrats who wanted to end it.

Rather, the best thing for the Democrats would be to ram through as much of their agenda as quickly as possible, with as little debate as possible. The Democrats have 58 votes, likely soon to 59 as soon as the situation in Minnesota is over with. Their best strategy is simply to make the compromises necessary to pull in a Republican or two (or three) and pass things quickly. Taking a hard line and forcing a true filibuster is by comparison highly risky--risking losing control of the debate and giving the Republicans the opportunity to martial enough public support on their side to cause the bill to fail. And enough successes like that would probably rejuvenate the Republicans' fortunes and set the stage for a possible repeat of 1994.

Of course, I think the kinds of national debates that true filibusters would engender would probably be a good thing, rather than a bad one. The sunlight they would shine on Obama's agenda would be a healthy thing for our republic. But as political advice for the Democrats, well, Professor Repass misses the mark entirely.
3.2.2009 2:45pm
mantis (mail):
But what does the 139 number prove?

It proves they filed for cloture more than any other Congress.

First, cloture can be sought more than once, so the fact there were 139 cloture filings does not mean there were 139 filibusters.

There were 112 cloture votes, as you could see by following the link. Does that help you any? The previous record was the 107th Congress, with 61 cloture votes.

Second, I don't remember any cloture filings on the federal judges that the Democrats "filibustered."

I wasn't addressing any such question or comment. In any case, the fact that you don't remember them doesn't mean they didn't happen. They did.
3.2.2009 2:51pm
cboldt (mail):
-- First, cloture can be sought more than once, so the fact there were 139 cloture filings does not mean there were 139 filibusters. --
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Counting cloture motions is a poor and crude substitute for "filibuster," but both parties are engaged in drawing equivalence between the procedural device "cloture," and the broader notion of obstruction by parliamentary device. At any rate, of those 139 cloture motions, a significant number were on motions to proceed to take up a bill, some were to limit debate on amendments, and others were to limit debate on final passage. Reid filed cloture motions on matters where there was token opposition, and in a few cases, the cloture votes were unanimous, meaning that whatever opposition may have been present, evaporated (probably due to political expediency).
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-- Second, I don't remember any cloture filings on the federal judges that the Democrats "filibustered." --
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They were numerous. Some nominees obtained multiple cloture votes (Owen, Estrada), and all of the contentious ones were objected to, with the GOP filing cloture motions to surmount objections to voting at an agreed time. Summary of Circuit Court Nominations - 109th Congress
3.2.2009 2:57pm
Profane (mail) (www):
"We pour legislation into the Senatorial saucer to cool it."

- George Washington

It sounds like things are working as they were intended to.
3.2.2009 2:59pm
cboldt (mail):
-- Let's not forget that back when the Republicans were in power on the Hill, they considered doing away with the filibuster --
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Not as a blanket. The proposed parliamentary ruling would have affected the procedure for -ONLY- Circuit Court nominations. The remedy was narrowly tailored to a particular obstruction, and the GOP made of point of expressing that parliamentary devices for blocking legislation would be unaffected by the remedy to be sought.
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At the time, John Bolton's nomination was also being obstructed by the DEMs, and the proposed remedy would not have impacted the ability of the minority to continue to block that particular confirmation vote.
3.2.2009 3:07pm
mls (www):
My beef is with Professor RePass's blithe assertion that the phantom filibuster is "clearly unconstitutional." I assume that he knows enough about the Constitution and the Senate to realize that this is not true. Perhaps one can argue that the filibuster is unconstitutional, but it certainly is not "clearly unconstitutional." And if the "phantom filibuster" is unconstitutional so is the real filibuster, which the Professor apparently accepts.

Presumably the Professor makes this statement in order to fool people who don't know any better, which is an unfortunate use of his academic position.
3.2.2009 3:24pm
FormerStudent:
"See California, present day, for an example of what supermajorities + gerrymanding + partisian ballots gets you."

But with California you also have hordes of ballot measures that require the state to spend money on particular items (sort of a citizen earmark as I understand it), while restricting how much and what types of taxes can be raised by the state and local governments. I'm not an expert on California politics, but I lived there a while, and I'm virtually certain the above is a gross oversimplification of their problems.
3.2.2009 3:42pm
Repeal 16-17 (mail):
The Senate rules, as enforced, essentially allow the quorum call (which delays debate for fifteen minutes every time it's raised) to turn into a "one-man filibuster."


Any member can make a unanimous consent request to end a quorum call. Quorum calls are used as timeouts, not as filibusters.

As for the filibuster (virtual and real), it's childish and should be abolished.
3.2.2009 3:45pm
Bob from Ohio (mail):
Get rid of the fillibuster, "holds", "blue slips" and any other such devices.

No other US legislative body uses the fillibuster. Not the House and not any state legislature. We manage to survive.

Let the majority govern. For good or ill.
3.2.2009 3:45pm
Bob from Ohio (mail):

unanimous consent


Thanks for the reminder. Another stupid Senate practice.

The Senate has "rules" that they never follow. They just "unanimous consent" them away.

If the rules get in the way of effective legislating, they are bad rules. Get rid of them.
3.2.2009 3:49pm
Dave N (mail):
cboldt,

I can't get to your blog (my employer blocks "Blogspot" but not the VC, go figure). You made my point about Reid running upt the totals.

When you mentioned it, however, I did remember that there were cloture votes on some of the nominations. I apologize for implying there were none.
3.2.2009 3:57pm
cboldt (mail):
-- Any member can make a unanimous consent request to end a quorum call. Quorum calls are used as timeouts, not as filibusters. --
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Quorum calls are more like time fillers than time outs. It is unusual for a quorum to be present even during speeches.
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But Senate procedure being that "something" has to be underway while the Senate is in session, when nobody is speaking, and no voting is taking place, the Senator who is about to leave the chamber suggests the absence of a quorum, and the clerk engages in quorum call until some Senator asks for the floor. Then, even though a quorum is rarely present, the chair recognizes the Senator who has sought recognition.
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I get a kick out of the occasions when there are 90+ Senators on the floor, and in order to buy time to negotiate the next step of "action," the majority leader says "I suggest the absence of a quorum." Heh. The chamber is full, there is no doubt a quorum is present. But, protocol says the Senate must be doing something, and while they figure out what that is going to be, quorum call fills the gap.
3.2.2009 4:10pm
cboldt (mail):
Dave N -- I can't get to your blog (my employer blocks "Blogspot" but not the VC, go figure). You made my point about Reid running upt the totals. --
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Not much at the blog ... I quit adding to it after a couple years of following the Senate fairly close. It gets repetitive, and one can only take so much of pompous blowhards before moving on to other time wasters. The page linked is just a summary of Circuit Court nominations, with links to cloture votes and confirmation votes in the 109th, with reference back to the massive confirmation obstruction undertaken by the Democratic Party in the 108th Congress.
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Reid's running up the cloture motions on motions to proceed was enabled by his asking to take up items that he knew lacked bipartisan support. "Motion to proceed to a bill to withdraw from Iraq next week." But the parliamentary moves, even though clearly not made in good faith, facilitated many a "good" red-meat political speech.
3.2.2009 4:16pm
cboldt (mail):
As for the filibuster (virtual and real), it's childish and should be abolished.
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The proper function of unanimous consent is to give the minority an opportunity to be heard, and or be persuaded. It's reasonable to expect to be appropriately informed before casting a vote, hence the ostensible right to object to voting.
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At the same time, it isn't fair that a small minority can prevent a majority of the body from voting, when a super-majority has decided how it will vote. Hence the proper function of cloture is to give a super-majority the power to surmount objection.
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It's an abuse of cloture to refuse to vote, when the person saying "I refuse to let the body vote" knows how he/she will cast his own personal vote.
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Anyway, the "filibuster" (more precisely, "cloture") isn't per se a bad thing. It has a useful and necessary function. But, in the hands of today's Senate, it (and many other things) is misused.
3.2.2009 4:25pm
Bruce:
So where was Prof. RePass when "phantom filibusters" were used against President Bush's judicial nominees?

Who cares? The argument is either correct or it isn't.
3.2.2009 4:32pm
MarkField (mail):

Get rid of the fillibuster, "holds", "blue slips" and any other such devices.

No other US legislative body uses the fillibuster. Not the House and not any state legislature. We manage to survive.

Let the majority govern. For good or ill.


Well, whattya know? Lightning does strike twice: I agree.
3.2.2009 4:37pm
Kazinski:
Does anyone seriously think that Congress isn't passing enough legislation? Maybe they ought to increase the Senators required for cloture back up to 66, and then ratchet it higher from there until we stop seeing so much crap pouring out of Washington.

I do not however support filibusters of judges or other appointees of either party.
3.2.2009 4:49pm
Anon321:
I'm hoping that they return to the real filibuster because I desperately need Peter Armstrong's phone number, but don't have a copy of the D.C. phonebook. I stay up all night watching C-SPAN 2, with pen and paper at the ready, just hoping some Senator will read it out to me. Help!

(And Peter, if you're reading this, I need my snow blower back!)
3.2.2009 4:51pm
Eli Rabett (www):
Most here will not remember, but up to the sixties 66 votes were needed. This was reduced to 60. A possible fix would be to reduce it to 56 or so and retain the "false" filibuster.
3.2.2009 4:56pm
Volokh Groupie:
The filibuster is unconstitutional? I guess Prof. Repass feels no shame in embarrassing himself.

In any event, for those that are going to use the 'but republicans or democrats did it' excuse, isn't the point that you and your party are supposedly BETTER than the party it replaced? Or do you gleefully admit your failure as an improvement, as a representative of a new way of doing businesses and as an improvement?
3.2.2009 5:00pm
Gabriel McCall (mail):
Filibustering measures that would actually reduce the size of government is more fatal because the majorities that would sustain such policies were always going to be thinner than those for expanding government, which is the natural inclination of most Senators as individuals as well as the Senate as a body.

This is a problem with the people, not the system. No system of rules can fix a broken legislative populace. If the duly elected representatives of the people want a bigger government, they will get it; requiring larger supermajorities can slow that process down but the only way to reverse it is to elect different people.

Perhaps we could allow a bill to be repealed if there's a 41% submajority in favor of the repeal. There are other rules changes that might also help- automatic sunsets after X years for all laws unless renewed by another vote; only those congressmen who have heard the bill read aloud in its entirety may vote in favor of passing or renewing a bill (but any may vote against), etc. But again, the only real way to make dramatic changes to congress's output is by changing its makeup, not its processes.


Let the majority govern. For good or ill.

If we were talking about somebody else's country, it'd be a lot easier to be philosophical about that "or ill" bit.
3.2.2009 5:03pm
martinned (mail) (www):
Echoing what some others have written above:

There's nothing very special about a 50% + 1 voting threshold. As far as I can tell, the only thing special about it is that it is the lowest possible voting threshold that does not allow for two contradictory items to be passed at the same time. Otherwise, any threshold between 50% and 100% is fine.

The US Constitution itself, in various places, uses a 2/3 majority (Treaties, for example) and a 3/4 majority (Constitutional Amendments require approval by 3/4 of the states). In Europe, the Council votes by unanimity on some issues, and qualified majority (= about 62%) on other dossiers. The UN Security Council votes with unanimity among the permanent five, combined with simple majority of all 15 members.

The list goes on and on, and to my knowledge there is no principled reason to prefer one over the other, except to consider the tradeoff between the workability of the system and the desire to encourage outcomes that are widely supported. (That's how Public Choice gods Buchannan &Tullock analysed this problem in the 1960s.)
3.2.2009 5:04pm
Volokh Groupie:
I used improvement twice.

I too am a failure on previous commentators.
3.2.2009 5:06pm
NTB24601:
Jonathan Adler: So where was Prof. RePass when "phantom filibusters" were used against President Bush's judicial nominees?

Let's not forget that the widespread practice of holding up Judicial nominees was a Republican during the Clinton administration. This NPR Morning Edition segment from 1997 that may jog recollections.

Here's my impression of how judicial nominees have become so politicized (based solely on my vague awareness of the issue over the last several decades):

1. 1980: Ronald Reagan amends the anti-abortion plank in the Republican Party Platform to pledge to appoint judges with "traditional family values," making abortion stance a GOP litmus test for nominees.

2. 1987: The Democratically-controlled Senate rejects the nomination of Hon. Robert Bork for U.S. Supreme Court (58-42), largely over expectations about how he would rule on abortion cases.

3. 1994 - 2000: Senator Orin Hatch blocks President Clinton's judicial nominees.

4. 2000 - 2008: Democratic Senators block President Bush's judicial nominees.
3.2.2009 5:11pm
NTB24601:
MarkField (quoting Bob from Ohio)
Get rid of the fillibuster, "holds", "blue slips" and any other such devices.

No other US legislative body uses the fillibuster. Not the House and not any state legislature. We manage to survive.

Let the majority govern. For good or ill.
Well, whattya know? Lightning does strike twice: I agree.
IMHO, the filibuster gives the Senate too much leverage in bargaining with the House for them to ever weaken it.

Here's the amendment to Senate Rule 22 that I'd suggest as a compromise:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn present and voting -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
That way the minority that wants to filibuster has to keep its troops mustered and present. Perhaps not a complete cure, but an improvement, I think.
3.2.2009 5:25pm
Guest12345:
The 110th Congress had more cloture filings in their first session than any previous Congress had in two years.


What does "in their first session" mean? The 110th Congress ended on Jan 3, 2009. The 111th is now in session.
3.2.2009 5:30pm
A.S.:
TyWebb

I agree that "real" filibusters incur significant costs on the majority party, but such analysis is itself incomplete because it ignores the corresponding benefits in both procedure (i.e., making the minority stake their claim with that one senator in the chamber reading the phone book) and media messaging (i.e., changing the story from "Reid caves again" or "Dems fail to get 60 votes for important bill" to "McConnell pees pants while reading phone book" or "GOP delays passage of important bill").


David Nieperont

The counterargument is that for a real filibuster, the "one Senator" actually needs to stand up, in front of the cameras, and publicly exhibit what he's doing, with all the concomitant evoking of Strom Thurmond. He has to be willing to take the heat, show that he's thwarting the will of the majority.


I think both of you are not seeing it correctly.

Getting a chance to stand up in the chamber with all the media coverage following you is a positive thing for the minority party, not a negative. Minority parties are normally mostly shut out of media coverage of their positions. When there is a "real" filibuster, with accompanying increases of media time, the minority party finally gets a chance to shout out to the world "here is our position!" I don't think you realize the strucutral advantge that the majority (and Presidential) party have in media coverage. I think that the minority party would love to get the extra media exposure for its position that a real filibuster would allow.
3.2.2009 5:40pm
Thorley Winston (mail) (www):


I agree with Dan L and would add that if there had been a "true filibuster" over the stimulus/pork/generational theft act bill in question, I think it would have consisted of Republicans reading the various pork provisions in the bill into the Congressional record and inviting Democrats to defend them one-by-one rather than reading the telephone book. Actually, insofar as a "true filibuster" would discourage thousand-page omnibus monstrosities that no one currently seems to read before passing, it would be a GOOD THING.
3.2.2009 6:02pm
NTB24601:
Guest12345: What does "in their first session" mean? The 110th Congress ended on Jan 3, 2009. The 111th is now in session.

session - The period during which Congress assembles and carries on its regular business. Each Congress generally has two regular sessions (a first session and a second session), based on the constitutional mandate that Congress assemble at least once each year.
U.S. Senate Reference Glossary.
3.2.2009 6:08pm
Dave N (mail):
Personally, I don't see a problem with legislative filibusters. I do have a problem with judicial filibusters.

So I will say it now (so that Jukebox or anyone else can find it in the future): Judicial nominees deserve an up or down vote. Period. Even ones I disagree with. Even ones I would oppose if I were a United States Senator.
3.2.2009 6:13pm
cboldt (mail):
-- I think that the minority party would love to get the extra media exposure for its position that a real filibuster would allow. --
.
In the day to day conduct of the Senate's business, there is nothing standing against a Senator (or a party) taking the floor and talking. There is no need to invoke any particular mechanism to undertake that activity. "Cloture" is a means to LIMIT holding the floor. Once cloture is invoked, no Senator may speak more than one hour on that subject. Before cloture is invoked, they can get up there and talk talk talk to their hearts content.
.
That they don't talk from the chamber means they have nothing to say from that venue. And as long as a Senator is holding the floor, he [generally] can't be interrupted.
3.2.2009 6:14pm
martinned (mail) (www):
@Dave N: If I may ask, what's the reason for the distinction? Why do judicial nominees deserve "an up or down vote", while bills do not?
3.2.2009 6:17pm
NTB24601:
A.S.: I think that the minority party would love to get the extra media exposure for its position that a real filibuster would allow.

If we were talking about one filibuster per legislative session or less, then I might agree with you. If real filibusters occurred at the the current rate, though, then I think the minority party would garner only ridicule from the media. The story would be: "The Obstructionist Party is filibustering again!"

I don't think you realize the [structural advantage] that the majority (and Presidential) party have in media coverage.

That's not really born out by recent media coverage. During the first week of the stimulus debate, cable news networks hosted twice as many politicians from the minority party as from the majority party.
3.2.2009 6:24pm
GatoRat:
This is politics; it is often the case that the majority wants the filibuster every bit as much as the minority. This is true of a lot of, I'd even say most, posturing and motions in political bodies. The Senate doesn't change their rules because they provide an invaluable service to both sides--both sides can claim moral victory while castigating the other.
3.2.2009 6:26pm
Volokh Groupie:
@martinned: I imagine it comes down to the distinction between the role of congress as drafting and driving legislation versus simply an 'advise and consent role' w/respect to judicial nominees.
3.2.2009 6:41pm
A.S.:
Cboldt:
In the day to day conduct of the Senate's business, there is nothing standing against a Senator (or a party) taking the floor and talking.

No. But there's no media exposure for the normal day-to-day conduct of the Senate's business.

The point is that the spectacle of a "real" filibuster is a net positive for the minority party - it gives the minority party media exposure for their position that they don't normally get.

So, if the majority marty insists on a "real" filibuster, not only does that permit the minority party to get media exposure they wouldn't otherwise get, but it also requires that the majority party work really hard (by having 50 Senators be present all night) in a way that the minority party doesn't have to.

All in all, insisting on a real filibuster is a lose-lose situation for the majority party, which I suspect is why it doesn't occur anymore.
3.2.2009 6:47pm
martinned (mail) (www):
@Volokh Groupie: I'm not sure if I agree that that distinction holds up in practice. The senate examines judicial nominees in a similar manner to how it examines bills. The only difference is that nominees cannot be amended.

On the other hand, in terms of comity, I don't see much difference between a judicial candidate vetted and nominated by the President and a bill that's already been passed in the House, say. Personally, I'm OK with the voting threshold being 60 in either case, but I'm not sure why the Senate would owe it to the President to vote his nominee up or down, but not to the House to vote on a bill already passed there. (This leaves to one side, for the moment, bills not yet voted in the House.)
3.2.2009 6:50pm
A.S.:
That's not really born out by recent media coverage. During the first week of the stimulus debate, cable news networks hosted twice as many politicians from the minority party as from the majority party.

What an asinine survey (no surprise is from the asinine Media Matters). Why would they artificially limit the count to "lawmakers"? Naturally, when TV bookers are looking for people in government taking the pro-stimulus position, they could get either a Democrat lawmaker or an Obama Administration official. Restricting the count to only one of those two categories is either utterly stupid or intentionally misleading.
3.2.2009 6:53pm
Steve H (mail):

Personally, I don't see a problem with legislative filibusters. I do have a problem with judicial filibusters.


I would go the other way around.

Bills can be undone. Judicial appointments cannot.
3.2.2009 6:56pm
cboldt (mail):
-- The point is that the spectacle of a "real" filibuster is a net positive for the minority party --
.
My point was that what you call a "real" filibuster can happen on demand. All a party has to do to instigate a "real filibuster" is take to the floor and start talking. Cloture is a tool to STOP "real" filibusters. Cloture, if invoked, limits debate. without cloture, the matter remains alive indefinitely.
.
Other have debated why withholding voice on nominees is any different from withholding voice on legislation. The difference, certainly regarding judicial nominees, is a tipping in the balance of powers envisioned by the constitution. I don't subscribe to the point of view that the Senate's "advice and consent" role means that it has to pre-approve nominees (i.e., the way some people construe the "advise" part). When the Senate neither approves nor rejects a nominee, it stifles the power of the executive to appoint.
.
The Constitution envisions the minority being able to stifle the executive when it comes to treaties, but no such power (to the minority) appears in the context of appointments.
3.2.2009 7:02pm
first history:
Gramarye sez:

Obama will likely get 60 votes for his $3.6 trillion budget. Can you even conceive of the degree to which the political pendulum would have to swing to get a 60-vote majority for any budget consuming less than 20% of GDP? For any proposal including private accounts for social security?

The budget process requires only 51 votes; budget reconciliation bills are immune to filibusters.


While the federal budget process usually limits itself to making policy through budgetary allocations and ubsequent appropriations, the budget reconciliation process creates a legislative fast-track for substantive policy making
through the Congressional budget process. It is this legislative fast-tracking around the Senate filibuster that gives the budget reconciliation process its power compared to the normally laborious process of achieving change through traditional legislative means. Budget reconciliation has been used to make policy changes ranging from the trivial to the dramatic in areas from taxes to student loans to social policy and almost everything in-between.

. . . Normal Senate budget rules also cover Senate budget reconciliation legislation and limit debate to twenty hours on budget reconciliation measures and ten hours on budget reconciliation conference reports. This is the key provision that gives budget reconciliation its true power and makes it such a desirable vehicle for legislation.

By falling under the section 305 time limits for budgetary debate and being a privileged motion to start debate, budget reconciliation legislation avoids the filibuster, and with it, the sixty vote requirement to cut off debate. Budget reconciliation becomes a way, the only way under regular Senate procedure, to pass substantive legislation through a majority, instead of through a sixty vote requirement.


Source: Harvard Law School Briefing Paper No. 35, The Budget Reconciliation Process.
3.2.2009 7:05pm
NTB24601:
A.S.: What an asinine survey (no surprise is from the asinine Media Matters). Why would they artificially limit the count to "lawmakers"?

The count wasn't done by Media Matters. It was done by ThinkProgress, the left-leaning blog of the Center for American Progress. I agree that the study would be stronger if the count had included administration officials. Even if including administration officials were enough to make up the 51 to 26 difference (which I doubt), the results still strongly contradict your assertion that minority parties struggle to have their message heard.
3.2.2009 7:10pm
A.S.:
The count wasn't done by Media Matters. It was done by ThinkProgress, the left-leaning blog of the Center for American Progress.

My apologies - I saw Media Matters cited in the first paragraph and thought they were the source.

In any case, you may notice that they only survey the cable news networks (oddly, they omit CNN Headline news, or does that not exist anymore?). That is but a small subset of the "media".
3.2.2009 7:17pm
NTB24601:
martinned: "Personally, I'm OK with the voting threshold being 60 in either case, but I'm not sure why the Senate would owe it to the President to vote his nominee up or down, but not to the House to vote on a bill already passed there."

There's a conservative myth that prior to the Bork confirmation battle, the Senate concerned itself only with the qualifications of judicial nominees, not their ideological stances. (I am not a strong enough student of history to opine whether this myth is true; I'm skeptical though.) I suspect that many conservatives oppose filibustering judicial nominees because its a tool used by minority parties to block nominees largely for ideological reasons. In contrast, its entirely appropriate for ideological concerns to drive the legislative process.
3.2.2009 7:18pm
cboldt (mail):
-- budget reconciliation bills are immune to filibusters. --
.
But individual points can be sidelined with "legislation on an appropriations bill" point of order, which has the same 60 vote threshold to waive that cloture has to time limit debate.
3.2.2009 7:20pm
Dave N (mail):
Martinned,

Volokh Groupie expressed my thoughts. The Constitution gives the Senate the power to "advise and consent" on Presidential nominations. I do not think the power of "advise and consent" should include the power to block a vote on whether to GIVE the consent.

I have no problem with a nominee being voted down if a majority of the Senate disagrees with the President's choice. I do have a problem when a majority of the Senate is prevented from acting.
3.2.2009 7:21pm
martinned (mail) (www):
@Dave N: That still doesn't explain why the same doesn't go for bills, especially those already passed in the House. It also doesn't explain what's wrong with raising the voting threshold from 50 to 60, which is all the rule on filibusters/cloture really does.
3.2.2009 7:31pm
A.S.:
The funny thing, NTB24601, though, is that the Media Matter survey that ThinkProgress cited actually did survey both Administration officials and elected officals - and lumped them together in the same category for purposes of analysis. That was during the Bush Administration, so by doing so they increased the number of Republican officals in the count. Now, when there is a Democratic administration, ThinkProgress declines to count Administration officials and confines their count to only elected lawmakers, thereby decreasing the number of Democrats in the count. It's almost like they plan their method of counting to ensure they have the numbers they want...
3.2.2009 7:35pm
Dave N (mail):
Martinned,

I see a distinction between legislation, which must pass both Houses (and on the House side with potentially restrictive rules that prevent significant amendment) and nominations, that require merely the "advise and consent" of the Senate.

One deals with national policy, as set forh in national laws. The other is a check on the President's appointment power. To me, the two are fundamentally different concepts.
3.2.2009 7:42pm
NTB24601:
@A.S.: I think the difference in counting methodology is most likely attributable to different organizations doing the count. As mentioned, I agree that the ThinkProgress study would be stronger if they had included administration officials in their count.

Regardless, I don't think that criticism negates the point for which I cited the report: that the minority party currently has no problem garnering media exposure. Even if including administration officials would even out the disparity, that's still a lot of exposure for the minority party.
3.2.2009 7:44pm
MarkField (mail):

That way the minority that wants to filibuster has to keep its troops mustered and present. Perhaps not a complete cure, but an improvement, I think.


I'd certainly support that as a step in the right direction. Ultimately, though, I'm a majority rule guy when it comes to the legislature.

As for judges, I'd favor an up or down vote if they were term limited. Lifetime appointment gives me pause even with my bias in favor of the majority.
3.2.2009 7:44pm
martinned (mail) (www):
@Dave N: That is true, of course, but my impression is that the way the Senate examines bills and nominees is not that different. The work is essentially the same. (Apart from the fact that nominees cannot be amended.) Of course one can speculate about the role ideology plays in either process, and compare this to the role it ought to play, but I don't think it is possible to do so in the abstract.

One can easily imagine, for example, a case where the majority party is driven by ideology to nominate someone who is patently unqualified (let's assume for now that the ABA's recommendation is proof positive of this fact), causing the minority party to wish to filibuster this nominee on exactly the kind of grounds the writers of the constitution had in mind when they wrote "advise and consent". One could feel, of course, that in such a case the President ought to get his wish, but that would imply a situation where ideological arguments are OK as a reason to vote yes, but not as a reason to vote no.

What's more, there is no good way to distinguish between ideological arguments, which, ex hypothesi, have no place in the "advice and consent"-process, and non-ideological arguments. All too often, ideological arguments are simply arguments by people one does not agree with.

It follows that it is better to give the Senators the benefit of the doubt, and set the rules without making any assumptions about which kinds of arguments are likely to be proffered by whom, or about whether certain arguments should be allowed or not. In actual practice, the Senators can then try to use the difference in constitutional language to place certain arguments out of bounds, politically.

Keeping ideology out of the confirmation process makes sense based on the constitutional language, but it is a political question that, imho, does not make for a sound basis for legal rule making.
3.2.2009 7:56pm
FlimFlamSam:
With regard to the constitutionality of the filibuster, it is true that the Senate has the power to set the rules of its proceedings, but a strong constitutional case can be made that a rule that prohibits a majority from taking whatever action it wants is unconstitutional if it has effect from session to session.
3.2.2009 7:59pm
NTB24601:
MarkField: "I'd certainly support that as a step in the right direction. Ultimately, though, I'm a majority rule guy when it comes to the legislature."

I'm coming around to that position too, but its certainly not how I felt in 2005, so I'm vulnerable to charges of hypocrisy.

FlimFlamSam: "...a strong constitutional case can be made that a rule that prohibits a majority from taking whatever action it wants is unconstitutional if it has effect from session to session."

I think that's problematic too. Can't the Senate, though, at any time hold a majority vote to suspend its own rules -- regardless of what Senate Rule II says -- and then amend the rules (again with a majority vote). I always assumed that was how the "nuclear option" would work.
3.2.2009 8:20pm
Dave N (mail):
Mark Field,

I have no problem with having judges serve lengthy terms (say 15 years or so) after confirmation. That way we maintain an independent judiciary.

Of course, it takes one of those pesky Constitutional amendments to limit judicial terms--and THAT ain't gonna happen. EVER.
3.2.2009 8:22pm
markm (mail):
"So where was Prof. RePass when "phantom filibusters" were used against President Bush's judicial nominees?"

I have no idea where the Professor was, but I was certainly advocating real, close-the-Senate-down, filibusters, if they were going to have filibusters at all. And I certainly would like to see monster bills like Porkulus filibustered in the Senate chamber in front of the cameras - reading the phone book not necessary. Read one clause of the bill at a time, comment on it, move to the next one, and you could spend six months on true, germane, nonrepetitive debate. But then, to me shutting down one half of one branch of the federal government is just a good start. ;-)

OTOH, there are a couple of differences when it comes to filibustering judicial nominations. The constitutional argument: "advice and consent" can be take to say that the Senate has an obligation to do something, while I see no obligation to act on legislation. The policy argument: For nearly all bills, it is debatable whether the bill is needed at all, but for judicial offices, there really is a need to put a butt in that seat. That's more debatable with respect to most of the cabinet positions created since the McKinley administration, but their departments still exist whether or not a head has been confirmed, and leaving bureaucrats without an accountable leader is unlikely to have good results.
3.2.2009 9:52pm
Volokh Groupie:
@martinned

I'm not suggesting I agree with the view that the 60 limit threshold should be reduced. I was just trying to explicate what the argument might be. If I had to explore why someone may hold that position (in a more detailed manner) and address some of your points I'd probably stress the formal distinction which you pointed out isn't adhered to in practice.

The advise and consent role has seemingly changed in the past 20-30 years with the increased use of the judicial filibuster often specifically for ideological reasons (and i'm sure it will be used against future nominees). While the change has made the way nominations are handled nearly indistinguishable from the treatment of legislation, that is a somewhat recent development. Those who support a 'nuclear option' or some different threshold or whatever probably just want to revert to or get back to the type of dynamics during a nomination that existed before the change. Their argument would be that judicial nominations deserve greater deference because their arena is for the most part meant to be the executive branch as opposed to bills/legislation which at least formally are always introduced by congress.

It essentially comes down to how to interpret how expansive congress' 'advise and consent' role is when it appears to have changed a bit over the past 2 to 3 decade
3.2.2009 10:07pm
Volokh Groupie:
@martinned

i see in your other post you mention how troublesome 'ideological' issues are considering that senators often couch language regarding constitutional law to serve as an ideological conduit

first, if we have to also take into account the sneaky and disingenuous ways senators from both sides try to take down nominees then its game over. nearly all these arguments on both sides (and frankly in every aspect of politics/law) are aimed at ideals.

that said, if the number were dropped to say a compromise value of 56 or even down to say 50+1 then maybe we'd see less of that manipulation by the senators (though i'm not sure they're even the source of it)
3.2.2009 10:15pm
MarkField (mail):

I'm coming around to that position too, but its certainly not how I felt in 2005, so I'm vulnerable to charges of hypocrisy.


I'd feel more strongly about it if the Senate itself were representative. In my ideal system, it would be apportioned properly and run by strict majority rule.


I have no problem with having judges serve lengthy terms (say 15 years or so) after confirmation. That way we maintain an independent judiciary.


Others have suggested 18 years for the SCOTUS, which allows for replacement of a justice every 2 years. That seems like a good idea to me. I agree, though, that it would never pass.
3.2.2009 10:24pm

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