Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Senate finally confirmed Obama's first judicial nominee, Judge David Hamilton, for a spot on the 7th Circuit Court of Appeals, after months of delay from Republicans - the same Republicans who went ballistic when the same thing was done to Republican judicial nominees over the last 8 years. And as Dana Milbank documents, it took some serious situational ethics to justify it.
For much of this decade, Sen. Jeff Sessions of Alabama, now the top Republican on the Judiciary Committee, led the fight against Democratic filibusters of George W. Bush's judicial nominees. He decried Democrats' "unprecedented, obstructive tactics." To have Bush nominees "opposed on a partisan filibuster, it is really wrong," he added. He demanded they get "an up-and-down vote." He praised Republican leaders because they "opposed judicial filibusters" and have "been consistent on this issue even when it was not to their political benefit to do so."So now a Democratic president is in the White House and he has nominated his first appellate judicial nominee, U.S. District Judge David Hamilton. And what did Sessions do? He went to the floor and led a filibuster.
"I opposed filibusters before," the Alabaman said with his trademark twang. But in this case, he went on, "I don't agree with his judicial philosophy. Therefore, I believe this side cannot acquiesce into a philosophy that says that Democratic presidents can get their judges confirmed with 50 votes."
Oh come on, Senator. You're not even trying. At least make some pathetic attempt to make your flip flop sound principled. You don't agree with him? That's it? If you're going to be a hypocrite, at least be a nominally clever one and take a stab at inventing some rationale for it that might convince someone.
Let's see if the others can do better:
There was, for example, Minority Leader Mitch McConnell (Ky.). Back in 2005, he demanded "a simple up-or-down vote" for nominees and urged the Democrats to "move away from advise and obstruct and get back to advise and consent." He declared that Democrats wanted to "take away the power to nominate from the president and grant it to a minority of 41 senators."On Tuesday, McConnell voted to sustain the filibuster.
There was also Sen. Sam Brownback (Kan.), who in 2005 gave his considered opinion that "neither filibusters nor supermajority requirements have any place in the confirmation process."
On Tuesday, Brownback voted in favor of filibusters.
And there was Sen. Lindsey Graham (S.C.), who warned four years ago that "if the filibuster becomes an institutional response where 40 senators driven by special interest groups declare war on nominees in the future, the consequence will be that the judiciary will be destroyed over time."
On Tuesday, Graham voted to institutionalize the filibuster.
In all, 3/4 of the Republican Senators voted to sustain a filibuster, something they railed against when Bush was in the White House. And of course, some Democrats are in the same boat:
Democrats had some consistency problems of their own on Tuesday, as they found themselves demanding the "up-or-down vote" that they tried to deny Republicans during the Bush years. But Democrats were not in the same league of hypocrisy, because they weren't opposing Republicans' right to filibuster. They merely had enough votes to override this particular filibuster.
But that time is coming. I assure you that at some point in the next year or two, there will be much talk among Senate Democrats about the need to get rid of the judicial filibuster, just as there was when Clinton was in the White House in the 90s. And they'll talk of the grand principle of majority rule and the sanctity of the up or down vote. This is only the third time the scripts have been exchanged in the last 20 years.
Politics
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Have they no shame at all? Do they realize how foolish they look? Oh, wait American political memory is about 4 nanoseconds. What were we talking about?
Posted by: MikeMa | November 24, 2009 9:11 AM
Best thing that can be done to improve American politics - abolish the Senate.
Posted by: toby | November 24, 2009 9:43 AM
I remember an episode of Star Trek (original series, none of that Deep Space 90210 crap) where the crew visited a planet that had been embroiled in a two-sided war for centuries. The thing is they didn’t actually fight any battles. They waged war in computer simulations. Then each day the appropriate number of people from each side, designated by the simulation to be casualties, had to report disintegration booths. Poof gone. No muss, no fuss.
This system had many advantages over conventional warfare. No soldiers were needed, meaning the people could continue to hold jobs, raise families, and otherwise continue to contribute to society. There was no military budget and no military-industrial complex. It removed the pain and trauma of battle, with casualties dying painlessly and with no one wounded or maimed. It was all terribly civilized.
The problem was, with so much of war’s material and emotional cost removed, there was little incentive to negotiate a peace. In the end the crew of the Enterprise ended up destroying the computer, forcing the people to actually fight if they wanted to continue their war. Which brings to the point of my geeky little story. Filibusters have become like those simulated battles. They’re too simple, too painless. We need to bring back the horror. You want to filibuster you can damn well stand up and read the phone book into the record like your forefathers did. Go ahead and waste the time. Maybe then you’ll save it for those times you really need it. Down with Rule 22!
Posted by: Abby Normal | November 24, 2009 9:48 AM
@toby
That reminds me, if pro and con are opposites, what's the opposite of progress?
Posted by: Abby Normal | November 24, 2009 9:52 AM
I continue to support filibusters done in an easy manner, no having to quote the phone book. I shudder to consider what would have happened to our nation if the Dems couldn't filibuster Bush and the GOP from 2001 through the end of his presidency.
Let's remember that Bush's tax cuts, as badly as they harmed the federal government's balance sheet, contributed to deeper recession, and compromised our recovery, were done avoiding filibuster through a budget reconciliation process that avoids filibuster. However those policies at least expire given their avoidance of filibusters.
The root cause problem we currently face is that the GOP has few if any principled actors left. Couple that to there always being a handful of fence-sitters weighing their campaign cash-flow stream and future electoral chances and we're hosed. Reagan and the Congress worked together fairly well just like the USA/USSR in the cold war because both sides acted rationally with interests above party politics. The remedy in my opinion is to continue to vote Democratic to force the GOP to get back to sane policies and principled, sane actors.
Posted by: Michael Heath | November 24, 2009 10:39 AM
What Abby said. I'm not fool enough to wish the filibuster gone - my side won't be in power forever, after all - but it shouldn't be so damn easy to bring the government grinding to a halt. It shouldn't require a 60-vote supermajority to accomplish everything.
Posted by: Seraph | November 24, 2009 10:45 AM
Michael, if "the Democrats couldn't filibuster Bush and the GOP from 2001 through the end of his presidency", there is a very strong probability that the GOP would have lost power sooner. Bush might not even have won re-election in 2004.
I think we need to consider whether that might not have been worth the cost.
Posted by: dcsohl | November 24, 2009 10:51 AM
I have to agree with this sentiment at least in principle. The damage done to our economic stability might be irreparable, at best it is going to take decades to overcome the damage done.
I also argue that Clinton should have vetoed Gramm-Bliley-Leach and forced the idiots in Congress to override his veto. I honestly don't think they would have been able to do it.
Between those two acts I don't think our current economic situation would be as dire as it is.
Posted by: dogmeatib | November 24, 2009 11:23 AM
Republican ethics in this day and age seem to boil down to five words: it's okay when we do it.
Posted by: Sadie Morrison | November 24, 2009 12:13 PM
For what it's worth, not everyone's a hypocrite about this. Matthew Yglesias was calling for the elimination of the filibuster when the Republicans had a majority in the Senate, and he's still calling for it now.
I admit, I was unsure if I agreed with him then whereas recent events have made me quite sure I want to eliminate the filibuster. For what it's worth, I promise not to do a partisan flipflop on this issue the next time the Republicans have a Senate majority.
Posted by: Tom | November 24, 2009 12:26 PM
I oppose the elimination of the filibuster. It is critical for the minority to be able to have an effect on the proceedings of the legislative body, else what purpose do they serve in even showing up other than to provide a quorum (wasn't it Ray who said the role of the minority is to collect their paychecks and create a quorum?). Such being the case then a majority in a given chamber constitutes single-party rule, to which I am opposed.
Frankly, our 1.5 party system now is woefully insufficient and I'd much prefer to see 6-10 'major' parties who must form coalitions and compromise in order to accomplish anything as I think that tends to force moderation of the more extreme elements of any party.
The procedural filibuster however is absurdly simplistic and is as repugnant to a truly representative democracy as the 'secret holds' that legislators put on bills. If a minority wishes to filibuster, then speechify they must! If they do not feel strongly enough to do so or if it will interfere with meeting with lobbyists or perhaps annoy their constituents then perhaps they shouldn't be obstructing the business of the legislature.
Posted by: Rev Matt | November 24, 2009 12:53 PM
So much for that universal morality that these clowns say their religions bring them. It seems they just make it as they go along.
Posted by: History Punk | November 24, 2009 1:09 PM
Rev Matt@11:
"It is critical for the minority to be able to have an effect..."
You mean, as opposed to the system we have right now, where 95 of the Senators might as well stay home and we all just do whatever Olympia Snowe, Ben Nelson, Blanche Lincoln, Mary Landrieu and Joe Lieberman want?
Posted by: dcsohl | November 24, 2009 1:14 PM
I used to think that the filibuster was a good idea, but now I'm not so sure (and it's not just because the Democrats are in power).
I'm from the UK where the opposition (minority) party basically has very few tools by which to hold up legislation. Essentially, when Prime Ministers want something done then they only need to depend on the support of their own party.
This means that the ruling party's agenda gets pushed through pretty effectively, which certainly can hurt at times, like during Margaret Thatcher's radical privatization of the British economy during the 1980s, but she ran on that policy, won and won again, and was able to do what she had said she would do. The same thing happened during Tony Blair's time in office too.
But while all this can seem to generate wild swings in political and economic policy compared with the stagnation that happens in Washington, it also means that a change of party can more quickly correct the less desirable policies instituted by the previous administration while keeping the rest. Tony Blair quickly undid some of the things that happened in during the Thatcher years, but didn't re-nationalize huge swaths of British industry, which I believe was a good decision in the long run. I suspect the same sort of thing will happen once (and I think it's inevitable at this point) David Cameron becomes the next PM.
But the point is that things keep moving. I used to decry the wild swings from left-to-right and back again but having watched the paralysis that happens in the U.S. Senate over the years I have been here, I now think that letting the majority party have free reign is better for the country they govern over the long haul. I see the States drifting further and further behind in terms of social and economic policy because the legislation that comes out of the Senate often gets watered down into some mushy compromise (and loaded up with pork to entice waverers) like what's happening to the healthcare bill right now. It's almost as if the US is stuck in neutral most of the time.
European majority governments can get things done. Sure they sometimes get it wrong, but those mistakes can also be corrected more easily since the status quo can always be more easily overturned.
I understand that Americans are more distrustful of government in general, but even if you swept away the filibuster and most of the other blocking maneuvers, the public has a chance at booting the party from power every two years (at least in the House, and 1/3 of the Senate) so there is ample chance to punish unpopular moves.
So while the lack of a filibuster would no doubt have hurt liberal causes during the Bush years, if there had been no filibuster during the years when the Democrats were in power before that, the whole political landscape would have been very different to start with, so it's hard to say how much more damage there would have been, and once the Democrats were back in power, fixing those problems would have been easier. As it is, the most damaging aspect of the Bush policies -- the war in Iraq -- would have happened anyway.
So my belief is that killing off the filibuster would not be the disaster for the country some think it would be. I would be willing to let the majority party govern with the mandate they were given, not with all this false barriers Senate tradition has thrown up. It might hurt like hell in the short term, but in the long term I think it would help the US keep pace with the rest of the developed world.
Posted by: tacitus | November 24, 2009 1:56 PM
If anything, I think a supermajority vote makes more sense in the case of confirming justices than anywhere else--since that one decision carries lifelong consequences in a very powerful position that can not subsequently be revoked by another vote.
Posted by: Uncephalized | November 24, 2009 2:36 PM
If you really want a solution for what ails the Senate I would instead allocate not two senators per state, but instead a proportional number of senators per state. I would increase the headcount in the Senate sufficient enough to insure that the least populated states, like Alaska and Montana, who would have one Senator, would still not have a disproportionately large influence.
Conservatives currently enjoy vastly disproportionate influence given how we currently allocate Senators. This has been true since at least post-Civil War Times if not right from the ratification of the Constitution and is one more dysfunctional legacy of paradoxically creating a free nation where slavery was also still legal.
Posted by: Michael Heath | November 24, 2009 2:54 PM
tacitus -
How significant do you see being able to call new elections if the prime minister loses support? It seems with the American system with fixed elections times, and with Senators only being subject to re-election every 6 years, if a majority government starts trying to push through unpopular legislation then it's hard to respond by voting people out.
Posted by: mcmillan | November 24, 2009 3:23 PM
tacitus: Absolutely right, let the majority party govern with the mandate they were given, and let them be held accountable for what they do. The current system gives the minority party a huge incentive to obstruct everything because the voters will blame the majority party for the resulting dysfunction.
Uncephalized: I agree with that too.
Michael Heath: While it would be nice to have proportional representation in the Senate, I think that would be next to impossible to change because it's in the Constitution. The filibuster is not. So even though both of these problems contribute to making the Senate undemocratic and dysfunctional, it makes more sense to focus on eliminating the filibuster (or perhaps eliminating it for everything except judicial nominees, as Uncephalized suggests).
mcmillan: It's worth emphasizing that the entire House is up for election every two years, so that gives the voters a pretty significant level of ability to hold the ruling party accountable. I'm not sure that changes are needed there.
Posted by: Tom | November 24, 2009 3:53 PM
You have a point, though a UK government has to either have a razor thin majority or be extremely unpopular before enough of the majority party would support a vote of no confidence. The Labour Party isn't exactly very popular at the moment but there isn't really any chance that Gordon Brown will be pushed into an early election since many members of his own party would also risk losing their seat in Parliament.
In the US, even though the Senate elections are only ever six years, a third of them come up every 2 years and, of course, the House is all up for election every two years, so even if you can't get the ruling party out completely, you can given them a divided Congress to deal with.
Of course, removing the filibuster alone doesn't make all the problems go away. You have to make it easier to throw the bums out too. The power of incumbency, bolstered by the enormous amount of money it takes to run for the Senate these days, and (in the House) the ludicrous gerrymandering that goes on, all dampens the dynamics of American politics so you get the same old faces running things year in and year out.
Posted by: tacitus | November 24, 2009 3:58 PM
Great discussion on this thread. Tacitus, thanks much for your comment @14. This is an issue I have been pondering for some time. I value stability in government, but not at any cost, and I have to wonder if the cost has become too high in the U.S. I think the easy filibuster has been an important factor in making that stability too high. If the minority is serious enough, they'll rise to the occasion. Otherwise, wear 'em down, wait 'em out, then roll 'em over, I say.
Still, I worry about wild policy swings in a parliamentary system, so your comments there are very enlightening. Perhaps there is a tendency in an electorate to temper wild swings by punishing parties that swing too far, so that parties "censor" their wilder desires most of the time?
Posted by: James Hanley | November 24, 2009 4:18 PM
Thanks, James :).
The parliamentary system can be a bit of a roller coaster at times. I was only a kid in the 1970 when every election saw a change in party but I vaguely recall that people would complain of whiplash as consecutive Labour and Conservative governments took power. But then in the 80s and early 90s, the Conservatives held on to the reins of power under Margaret Thatcher and John Major, during which the Labour Party was considered to be too left wing for the country. But when Tony Blair brought the Labour Party back to the center (a center increasingly vacated by the Tories) he won power and it's only been in the last couple of years that the Tories have been brought back towards the middle (kicking and screaming) by David Cameron that they have been considered electable again.
So, in fact, the last 30 years have been incredibly stable in terms of party politics with the electorate rewarding centerism with only one change in party rule since Thatcher too control in 1979. Perhaps given how socialist the UK was in the 1970s, Thatcher reaped the rewards of the long pull back to the right before the conservatives finally overreached in the 1990s.
The current Labour party's woes are not really ideological though. The financial crisis and various scandals have wreaked havoc, and Gordon Brown has hardly proven himself to be a capable leader.
As for the US, I suspect that the deadlocking rules of the Senate is actually not a bad fit for the psyche of many Americans. They are more conservative in general and the mistrust of any government action is palpable, and fertile ground for a burgeoning conspiracy theory community (which I think is uniquely American in nature).
Posted by: tacitus | November 24, 2009 4:45 PM
Posted by: James Hanley | November 24, 2009 5:06 PM
tacitus @ 14 - great argument for the U.K. and many other European forms of government. I would love to read an analysis benchmarking their version vs. ours. It seems like America installs forms more similar to the U.K. than they do in America.
However, I don't see how ending filibusters here would create similar results. Our presidents have four years per term. Our senators have six. While it's true we have a "throw the bums out" mentality here as well - the energy of its ire is mostly focused only on Presidential elections and therefore, it can't be exercised as quickly as it can in the U.K. nor with as wide a scope as you enjoy. Can't victorious parties pull-in the 5 year PM term to hold new PM elections?
So yeah, if we had U.K.'s form of government I'd be fine throwing out the filibuster. But no way if a President has four, possibly eight years and Senators six years coupled to a voter mentality that it's never one's Senator's fault, it's all the other bums that are causing problems. Our form of government pretty much guarantees once something is passed, it's extremely difficult to revisit it and repair the damage; the filibuster is the primary lever we have to prevent really dangerous or really bad policy.
Posted by: Michael Heath | November 24, 2009 5:52 PM
Superficially, yes, but if you look at the number of constitutional reforms the Blair government has managed to acheive over the last decade, the comparison soon pales.
Devolution of power to Wales and Scotland, the ending of the hereditary nature of the House of Lords, and just this year, the formation of the new British Supreme Court which has a completely independent nomination process are just three examples of far-reaching legislation, and done, in part, because the minority party made up of traditionalists could not filibuster the changes.
Posted by: tacitus | November 24, 2009 5:56 PM
the filibuster is the primary lever we have to prevent really dangerous or really bad policy
People keep saying this, but I don't buy it. What's your best example of an instance when the filibuster was actually what prevented a dangerous or bad policy from being enacted?
Also, even supposing that the filibuster has prevented one or more bad policies from being enacted at some point, you've got to weigh that against the number of good policies that have been killed by the filibuster.
I doubt you have any empirical basis for believing that the number of bad policies killed is greater.
Posted by: Tom | November 25, 2009 1:11 AM
On filibusters, how about we look to possibly the most successful organisation in the country for guidance? I mean of course the NFL. Teams have the right to challenge referee's calls, but it was recognized that allowing that to occur on every play would render the games unplayable. So the league allows a limited number of challenges per game. Allowing filibusters on every bill and nominee has resulted in an inability to address any but the most trivial apple pie and motherhood issues.
Why not allow each senator a limited number of votes against cloture in each session? They would then have to prioritize their filibusters to those things they felt most strongly about. The same logic is also used in jury selection. Lawyers have to strategize in using their limited number of challenges most wisely, so why not senators?
Posted by: JusticeLeague | November 25, 2009 6:41 AM
This is easy (ie never be implemented).
Drop the filibuster ratio to 58% for 2015 and down to 55% for 2020. Dates chosen at random. Keep the buster around for real issues, but allow a little more latitude.
I know it's not the nice divisible 2/3 or 3/5 ratio that we have been spoiled with, but hell, we each have computers/calculators, I think we can figure out whether or not we have a 29/50's super majority!
Posted by: Drake33 | November 25, 2009 11:05 PM