Day By Day© by Chris Muir.

Wednesday, May 18, 2005

Is it just me, or does this argument not make sense?

I was checking out the Stakeholder, the Democratic Congressional Campaign Committee Weblog, and came across a post that offers an article by Norman Ornstein as the ultimate argument to destroy the Republicans' current attack on the filibuster. I have to confess here that I have no idea whether the Republicans' position is historically correct, but I'm pretty sure as a matter of logic that this Ornstein article has some problems. Here it is, with my questions and comments:

[Ornstein sets up his argument in the next few paragraphs, so you'll want to read them to get context.] Sorry, but I have to address judicial confirmations one more time. I wasn't planning on doing this, but the constant drumbeat of propaganda forced my hand. There is so much misinformation floating around that I thought it was important to clarify the historical record. Of course, by the time this column appears, enough institutionalists in the Senate might reach the edge of the abyss and think better of it. But even if there is a deal to head off the "nuclear option" to end judicial filibusters, some of these myths need to be confronted directly. The myths have been repeated ad nauseam by Republican Senators on television, in op-eds, at press conferences and on the floor. They have been faithfully repeated by bloggers and columnists. They were pulled together nicely and concisely in The Washington Post column by my friend Charles Krauthammer last Friday. Krauthammer - like Senate Majority Leader Bill Frist (R-Tenn.), Sens. Mitch McConnell (R-Ky.), Orrin Hatch (R-Utah) and their compadres - suggests that filibusters against judicial nominees are a fraud. He dismisses the filibuster against Abe Fortas as not a real filibuster, since he didn't have the votes anyhow. He says, "two hundred years of tradition have been radically and unilaterally changed by the minority" Democrats, because they have lost the last two elections and fear losing the only branch they control, the courts, on which their loyalists have legislated "by judicial fiat everything from abortion to gay marriage to religion in the public square." He says, further, that "one of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees." He calls the Democrats' actions "historically unprecedented" and "radical," saying they have "unilaterally shattered one of the longest-running traditions in parliamentary history." This view was reinforced by Frist's op-ed in Monday's USA Today, in which he wrote about the 214-year-old tradition of having up-or-down votes in the Senate on judicial nominations. He adds that, since President Bill Clinton's judicial nominees only required 51 votes, "why should George W. Bush's be treated differently?" [Okay, here's the substantive argument.] Where to begin? Let's deal quickly with Fortas. First, apply Logic 101: If Fortas did not have the votes, why filibuster? If it was not a filibuster, as many Republican Senators have contended, explain the official Senate Web site, in its section on history, having as its headline "October 1, 1968: Filibuster Derails Supreme Court Appointee." [Is the official Senate website, which clearly didn't exist in 1968, actually quoting contemporary 1968 documents, or is this is some webmaster's modern gloss? It makes a huge difference because Ornstein is quoting this language as the main authority for his argument about Fortas' nomination.] Must be the phenomenon Ronald Reagan talked about with his White House, that sometimes the right hand doesn't know what the far-right hand is doing. Now let's turn to the twin notions that through 214 years of American history there has been a near-ironclad tradition of judicial nominees getting up-or-down votes on the Senate floor, undergirded by the great custom of the Senate that renders filibusters of judicial nominees taboo. [Before we get to the next argument, let me interject here that I understand a filibuster to be, not a debate, but a situation in which one side gets the floor and won't let go. Once they have the floor, they can discuss the topic at issue, or not. A filibuster is not, therefore, a way to enhance debate, but is, rather, a way to shut it down. After all, we've all seen Mr. Smith Goes to Washington.] On the latter point, I have searched through a whole lot of history of the Senate, from George Haynes' classic volumes to memoirs and other literature. I have yet to read anything about some long-standing tradition, custom or unwritten rule against filibustering judicial nominees. It is true that for more than 30 years after the Senate got its first cloture rule in 1917, there was no cloture provision on nominations. But remember that cloture is the way to end, not to extend, debate. Before 1917, for nominations or legislation, there was no way to end debate if one or more Senators held the floor. So the lack of a specific cloture provision for nominations did not mean there was no provision for a filibuster; quite the contrary. It meant there was no way for any supermajority of Senators, whether two-thirds of those present and voting or 60 Senators, to stop talking and start voting. [Here's where I got confused. He's saying that there was no easy way to end debate. But he's not saying that there was a long-standing tradition of obstructing debate, whereby a minority party took the floor and refused to yield it, preventing a vote from ever occurring.] Now let us take up the assertion that we have had a two-century-plus tradition of giving presidents up-or-down votes on their judicial nominations. What are these people smoking? For more than 200 years, hundreds of judicial nominees at all levels had their nominations deep-sixed, buried, killed or asphyxiated by the Senate, either by one individual, a committee or a small group of Senators, before the nominations ever got anywhere near the floor. [I accept this as true. But what's it got to do with the question of whether those candidates lucky enough to escape committee should then be denied a voting process because one party has taken the floor hostage? The fact that a lot of people never got to the floor in the first place is not support for a filibuster, which is a device that kicks in only after they make it to the floor.] To be sure, most were not filibustered in the "Mr. Smith" sense, or in the modern and direct version. These judicial nominees were stabbed in the back, not in the chest. [Fine, but it's still not historical evidence of a long-standing right to filibuster judicial nominees.] Consider the history of Supreme Court nominations - the most visible and prized, of course, and the ones you'd think would have clearly fit Krauthammer's notion. Of the 154 nominations to the Supreme Court between 1789 and 2002, 34 were not confirmed. Of these, 11 were rejected by a vote of the full Senate. The remaining 23 were postponed, referred to a committee from which they never emerged, reported from committee but not acted on, or, in a few cases, withdrawn by the president when the going got tough. At least seven nominations were killed because of objections by home-state Senators. Five others were reported to the Judiciary Committee (which was created in 1816) and never made it out. [All that this means is that the straight up-and-down vote system works. Senators will, for reasons of honor or political opportunism, sometimes turn down the presidential nominees. Ornstein also doesn't say whether the failed candidates were nominated by a president who had to send the nominations to a Senate run by the opposing party. It's simply meaningless to say that, because some candidates win and some lose, there most by extrapolation have been a filibuster process at work. This kind of "negative proof" is inane.] That is the Supreme Court. We don't have a precise account of nominees to federal appeals courts or district courts, but we do know that there is a longstanding tradition, custom and unwritten rule applying to district court nominees, giving one or two Senators from the home state a veto power that has been exercised countless times. (That unwritten rule, incidentally, was shattered by Hatch, then the Judiciary chairman, when Clinton was president.) [A long-standing collegial tradition is still not a long-standing filibuster rule whereby a minority party gets to block an up-and-down vote.] This "blue slip" power was applied less frequently to appeals court nominees, but many in the past were killed far short of a vote on the Senate floor. Why weren't more of them filibustered? Because it was easy enough to kill most of the controversial ones without resorting to a filibuster. [Again, proof that there was collegial cooperation and bargaining -- which is important for a functioning body -- rather than Senate hostage taking by means of the filibuster, something that destroys the Democratic process.] There is no record I can find of a historical period in which the Senate systematically killed such nominations. Rather, they tended to be done on a case-by-case basis. [And it was apparently done on a case-by-case negotiation/compromise basis without a filibuster.] But that did change in the second Clinton term, when dozens of judicial nominees, including many to appeals courts, were denied hearings, in some cases for four or five years, not on the basis of any charge that they were ideologically extreme or unqualified, but rather because they represented slots on important courts, worth keeping open in case the next president turned out to be a Republican. [True or not, what does this have to prove about a historical right to filibuster judicial nominations?] If we want to look for a breach in Senate traditions, that is where to start. And the failure to bring more than 60 to the floor for up-or-down votes makes one gape at Frist's astonishing comment that the standard in the Clinton years was 51 votes. For these 60 would-be judges, it was a one-vote standard - that of the chairman of the Judiciary Committee. There are longstanding traditions in the Senate regarding judicial nominations. Those traditions call for a vigorous and independent Senate playing its role of advice and consent. They understand that judicial nominations, because they represent lifetime appointments which cannot and should not be easily rescinded, require higher hurdles than simple legislation which can always be amended or repealed. Charles Krauthammer called the nuclear option "restoration." It's not even close.
The clear message here is that, because, in the past, presidents have nominated judges whom the Senate did not then approve, there must have been a filibuster process. This is not argument; it's wishful thinking. I think the article unwittingly makes a powerful argument supporting the nuclear option. What it demonstrates is that, absent a filibuster, Senators have to work together to determine the outcome of an up-or-down vote. Backroom-bargaining may be unseemly, but it's a much more effective way for the minority party to make its voice heard and get business done. For example, I can envision a situation in which the minority party leader says his party opposes Judge X's nomination. If the majority party will back down on Judge X, the minority party will give an inch on something else, something different, occupying the Senate's attention. After all, politics is the art of compromise.