Thursday, November 17, 2016

The future of the filibuster: Part I

Time for another series.  I keep getting this one, and it is complicated.  Will the filibuster survive, in any form?  Despite recent reports that Hatch and others want to keep it, I doubt it.

So first, how we got here.  Ending debate in the Senate requires a "cloture motion," which requires 3/5, not a majority.  Calling a vote requires ending debate.  So, you can block anything in the Senate by refusing to allow debate to end.  That's the filibuster.  You can broaden the definition of filibustering to include any other form of "dilatory motion," which basically just means being a procedural douchebag and using every trick in the book to drag things out as much as possible to delay or stop anything from happening, but let's stick with the endless debate version for now.

Judicial filibusters became a big issue in 2004 under George W. Bush, when the Democrats began filibustering a few nominees for federal courts below the Supreme Court, whom they viewed as too conservative.  The Republican majority in the Senate objected because this was an extension of the filibuster that was unusual, although part of a general increase over time in the use of the filibuster.  At the time, Senate Republicans claimed that the Constitution required every nominee to get a straight up-or-down vote.  (Note that as Chair of the Senate Judiciary Committee when Clinton was President, Orrin Hatch refused to act on several of Clinton's nominees, thereby preventing them from getting votes in actions that were not filibusters, but, well...).  The solution?  The "nuclear option," which many Republicans at the time called, "the constitutional option."  The Senate Majority Leader at the time, Bill Frist, would ask then-Vice President Dick Cheney (President of the Senate, by the Constitution) to issue a ruling on whether or not the rules of the Senate permitted the filibuster for judicial nominees.  Even though the rules clearly did, Cheney could say otherwise.  Democrats could object.  Cheney's ruling would be put to a vote.  Upholding Cheney's vote, though, only required 51 votes.  When the nuclear option was put on the table seriously in 2005, Republicans had 55 seats.  Changing the rules to let judicial nominees get through with a bare majority would require 67 votes.  Invoking cloture required 60 votes.  Pretending the rules didn't exist?  That would only require 51 votes.

The situation ended when the "Gang of 14," consisting of 7 Democrats and 7 Republicans made a deal.  The 7 Democrats would vote for cloture on the controversial nominees, giving the Republicans a victory on all the main judges, and if the Republican leadership ever tried to go nuclear, even though they would no longer have a need, those 7 Republicans would vote no, thereby preserving the hypothetical filibuster under the hypothetical situation of maybe sometime kinda sorta they might think about letting the Democrats maybe filibuster.  Translation:  Democrats caved.

Boy, that nuclear option must be one helluva threat, right?  Nobody would ever push things that far, right?  Join us for Part II, when we discuss how views of the filibuster and the nuclear option are situation-dependent.

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