Filibuster: Exchanging Scripts Again

With the Democrats holding a slim majority in the Senate, Majority Leader Harry Reid is making noise about doing away with the filibuster, or reforming it in some way, to prevent the minority from blocking votes on legislation as long as they can get 40 votes to continue debate. So let’s set the wayback machine for 2003-2005, when Republicans had control of the Senate and Majority Leader Bill Frist was talking about invoking the “nuclear option” to get rid of the filibuster and the Democrats were throwing a fit about it. Like this:

Sen. Christopher J. Dodd, Connecticut Democrat, said it is a “huge mistake” to change the filibuster rule.

“This rule is important as well because it forces Democrats and Republicans to work together, to come to consensus. If you abandon this rule, then you’ll find even more partisanship, in my view, in the United States Senate,” he told interviewers on CBS’ “Face The Nation.”

Mr. Dodd “warned” Republicans that changing the rule could allow Democrats to stack the federal judiciary in the future.

“I wonder if people in some of the states in the South, for instance, are going to be terribly happy when a Democrat president, a Democratic president sitting there, virtually deciding for him- or herself who the federal judges will be out of that state, because you’ll no longer have to consult with the senators from those states, as you do today.”

And this:

Republicans say that Democrats have abused the filibuster by blocking 10 of the president’s 229 judicial nominees in his first term — although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan. Describing the filibusters as intolerable, Senate Majority Leader Bill Frist (R-Tenn.) has hinted he may resort to an unusual parliamentary maneuver, dubbed the “nuclear option,” to thwart such filibusters.

“One way or another, the filibuster of judicial nominees must end,” he said in a speech to the Federalist Society last month, labeling the use of filibusters against judicial nominees a “formula for tyranny by the minority.”

So far, at least, Democrats are refusing to forgo filibusters and say they will fight any effort by Frist to act unilaterally to end them for judicial nominations. They warn that it could poison the well for bipartisan cooperation on other issues in the upcoming Congress.

“If they, for whatever reason, decide to do this, it’s not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back,” incoming Senate Democratic leader Harry M. Reid (Nev.) said last week. “I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up.”…

Republicans counter that, even though the number of filibustered nominations is small, the Democrats are trampling on the Constitution by denying a straight up-or-down vote for even a single nomination. The Constitution, they note, requires two-thirds majorities for treaties, constitutional amendments and other specific matters but calls for only the “advice and consent” of the Senate on judicial choices, with no reference to any super-majority for confirmation.

Democrats disagree, arguing that the Constitution empowers Congress to set its own rules of operation and does not specify the size of a majority needed for judicial confirmations because the issue was to be left to the Senate to decide. “What about all these people who say they want a literal reading of the Constitution?” asked Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee.

And this:

Democratic National Committee chairman Howard Dean says Republicans are fixing to “blow up 200 years of Senate history” just because they’re not getting their way on a handful of “radical” judicial nominees.

And this:

SEN. CHARLES SCHUMER: It would turn the United States Senate, everything all of us have worked for and worked in, into a legislative wasteland…

SEN. HARRY REID: In order to break down the separation of powers and ram through their appointees to the judicial branch, President Bush and the Republican leadership want to eliminate a 200-year-old American rule saying that every member of the Senate can rise to say their piece and speak on behalf of the people who sent them here.

Of course, the Republicans are being just as hypocritical. All those quotes were from 2003 to 2005, when the Republicans were railing against the filibuster and the Democrats were defending it. And in the mid 90s, of course, it was the other way around.

And they will exchange scripts again, undoubtedly. And partisans of both parties will have all kinds of excuses for why it’s totally different when their party does it – because, of course, the other party is evil and must be stopped and we are pure and must succeed. And the Republicans have done the same thing, of course, more than once. Here’s Sen. John Kyl, a conservative Republican from Arizona in 2005 grandly declaring that not only must such filibusters be stopped, but pledging to never, ever change his mind when a Democrat is in the White House:

“Republicans seek to right a wrong that has undermined 214 years of tradition – wise, carefully thought-out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations but were never used to that end is an important indicator of what is right, and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore….

My friends argue that Republicans may want to filibuster a future Democratic President’s nominees. To that I say, I don’t think so, and even if true, I’m willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future. I know some insist that we will someday want to block Democrat judges by filibuster. But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned.”

Yes, he and his colleagues spoke passionately, publicly and privately, about the injustice of judicial filibusters. But now that Obama is ready to take office, the worm has indeed turned for Kyl. He appeared at a Federalist Society event in Phoenix a mere 2 days after the election and here’s what was reported from that meeting:

“Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal.

Kyl, Arizona’s junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.

“He believes in justices that have empathy,” said Kyl, speaking at a Federalist Society meeting in Phoenix. The attorneys group promotes conservative legal principles.

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.”

And here is Jon Kyl now that Reid wants to get rid of the filibuster:

Sen. Jon Kyl (R-Ariz.) followed McConnell on Tuesday called it the “nuclear option” and a violation of Senate rules, which he said normally require a two-thirds majority vote for rule changes.

“To suggest a nuclear option by which a mere majority of the body can amend the rules, is itself a violation of the rules,” Kyl said. “It’s an assertion of power, but as the old saying goes, might does not make right.”

None of these people are speaking out of anything remotely like principle. It’s all about political power. The filibuster, as currently configured, should be done away with. At the very least, you should have to do a real filibuster and speak on the floor for hours and days on end. That would require some commitment and make them far more rare and difficult. But I don’t want to hear any of these frauds pretending to be acting on principle. They’re not.

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