A Brief History of the Filibuster

Dana Mathewson

Brother-in-law Dave Dickinson sent me this excellent article from the Washington Examiner.

When you read this you'll already be aware that Sen. Majority Leader Mitch McConnell has played the "nuclear option." Or has he? As this article points out,

This week, in all likelihood, Senate Majority Leader Mitch McConnell will put the judicial filibuster to death. But when he does, it will not be accurate to say he is triggering the "nuclear option," because Democrats already nuked everything that could be nuked in 2013. McConnell and Republicans are really just clearing away the rubble.

It also would not be appropriate to blame "both sides" and suggest that the Senate sank to its current nadir because the two parties took turns to drive it down. Nearly every outrage in the judicial wars of the past two decades has been perpetrated by Democrats, and mostly Minority Leader Chuck Schumer and his predecessor Harry Reid.

News media, infatuated with "both sides" journalism, is often either unable or unwilling to accept that there is a great partisan imbalance in many aspects of politics. So it's worth recounting that Democrats did 90 percent of the work in breaking down the bipartisanship that used to accompany judicial nominees. More specifically, Schumer brought us to this point.

[...]

After the 2002 elections, when Republicans took back the Senate, first-term Sen. Schumer led the charge on this innovation of filibustering lower court nominees. He started with Miguel Estrada's nomination to the U.S. Court of Appeals for the D.C. Circuit, where Schumer could find a logical-sounding but dishonest reason to prevent a vote. The senator argued that he would allow an up-or-down vote on Estrada when Estrada turned over the confidential memos he had produced as solicitor general.

This was literally asking Estrada to breach attorney-client privilege, and every living former solicitor general signed a letter declaring Schumer's request inappropriate. It's anyway disingenuous, for Schumer knew he was making a demand that would have to be refused. Democrats asked for the material because it clearly would never be produced. It was a transparent tactic to block conservative judges from the circuit courts, because their appointments might set them up for the Supreme Court someday.

Democratic staffers admitted as much in a memo that was leaked to the Wall Street Journal. The liberal groups who were calling the shots had instructed Democrats whom to filibuster. The groups "identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment."

Democrats swiftly escalated from there to filibuster almost every circuit court nominee they could. Schumer had a mendacious excuse at this stage, too. He said they weren't filibustering all nominees, just "controversial nominees," by which he meant any judge who couldn't get 60 votes. It set a 60-vote threshold for all judicial nominees. It was another escalation, and again Schumer led the charge.

In 2006, Democrats took back the Senate, and beginning in 2009, a Democratic president began nominating judges. Democrats then began gnashing their teeth when Republicans responded in kind, filibustering every Democratic judge they could. Again, this was only what Schumer had begun. So Democrats escalated again.

Senate Majority Leader Harry Reid in 2013 brought filibustered Obama court nominees to the floor. Republicans voted against cloture. So Reid said he would change the rules so that it took only 51 votes instead of 60 to invoke cloture on a judicial nominee.

But under Senate rules, it takes a two-thirds supermajority, 67 Senate votes, to change Senate rules. Blasting this two-thirds requirement was the real nuclear bomb. Reid moved to overturn the ruling of the parliamentarian that it took two-thirds to change the rules.

With a majority vote, then, Democrats ruled that 51 equals 67. Reid didn't just nuke the judicial filibuster but nuked the idea that the Senate has rules beyond what the majority wants. And rules that the simple majority can change hardly count as rules.

Reid and the Democrats in 2013 changed the rules only on lower court nominees. And so one could say that Republicans this week will be escalating the warfare by expanding this regimen to Supreme Court nominees. But that's a quibble. There is no logical reason to treat lower court nominees and Supreme Court picks differently.

Again, the real nuclear option was Reid's precedent that a 51-vote majority could change Senate rules.

Etc., etc. I think it's fun to read about how the game is played, especially when "we" end up holding more cards than "they" do (I did tell you that McConnell changed the rule today -- Thursday 4/6).

Read the entire article at: http://www.washingtonexaminer.com/the-house-er-senate-that-chuck-schumer-built/article/2619199

Posted by: Timothy Birdnow at 08:28 AM | No Comments | Add Comment
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