The Democrats today decided to grab a little more power — for now at least — by changing the Senate rules so as to prevent filibustering of executive nominees. This enables them to bypass the Republican minority in order to get some left-wing judges onto the D.C. circuit court.
The rule they changed has been in place since 1789; it is intended as a bulwark against what is commonly called “the tyranny of the majority”, one of democracy’s more pernicious defects. (It has many.) The New York Times once referred to it as “a time-honored Senate procedure that prevents a bare majority of senators from running roughshod.”
Here’s a speech by Harry Reid to the Senate, from May 18th, 2005 — back when the Democrats were the minority party, and therefore a little more concerned with that whole tyranny-of-the-majority thing:
Mr. President, yesterday morning I spoke here about a statement the Majority Leader issued calling the filibuster a “procedural gimmick.’
The Websters dictionary defines “gimmick’ as ”“ – “an ingenious new scheme or angle.’ No Mr. President, the filibuster is not a scheme. And it is not new.
The filibuster is far from a “procedural gimmick.’ It is part of the fabric of this institution. It was well known in colonial legislatures, and it is an integral part of our country’s 217 years of history.
The first filibuster in the U.S. Congress happened in 1790. It was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress.
Since 1790, the filibuster has been employed hundreds and hundreds of times. Senators have used it to stand up to popular presidents. To block legislation. And yes ”“ even to stall executive nominees.
The roots of the filibuster can be found in the Constitution and in the Senate rules.
In establishing each House of Congress, Article I Section 5 of the Constitution states that “Each House may determine the rules.’
In crafting the rules of the Senate, Senators established the right to extended debate ”“ and they formalized it with Rule XXII almost 100 years ago. This rule codified the practice that Senators could debate extensively.
Under Rule XXII, debate may be cut off under limited circumstances.
”“ 67 votes to end a filibuster of a motion to amend a Senate rule.
”“ 60 votes to end a filibuster against any other legislative business.
A conversation between Thomas Jefferson and George Washington describes the United States Senate and our Founders Fathers vision of it.
Jefferson asked Washington what is the purpose of the Senate?
Washington responded with a question of his own, “Why did you pour that coffee into your saucer?’
“To cool it,’ Jefferson replied.
To which Washington said; “Even so, we pour legislation into the senatorial saucer to cool it.’
And this is exactly what the filibuster does. It encourages moderation and consensus. It gives voice to the minority, so that cooler heads may prevail. It also separates us from the House of Representatives ”“ where the majority rules.
And it is very much in keeping with the spirit of the government established by the Framers of our Constitution: Limited Government. Separation of Powers. Checks and Balances.
Mr. President, the filibuster is a critical tool in keeping the majority in check. This central fact has been acknowledged and even praised by Senators from both parties. In fact, my colleague from Georgia ”“ Senator Isakson ”“ recently shared a conversation he had with an official from the Iraqi government.
The Senator had asked this official if he was worried that the majority in Iraq would overrun the minority. But the official replied”¦ “no”¦.we have the secret weapon called the ”˜filibuster.’’
In recalling that conversation, Senator Isakson remarked: “If there were ever a reason for optimism”¦ it is one of [the Iraqi] minority leaders, proudly stating one of the pillars and principles of our government, as the way they would ensure that the majority never overran the minority.’
And he was right.
I spoke yesterday about Senator Holt and his 1939 filibuster to protect workers’ wages and hours.
There are also recent examples of the filibuster achieving good.
In 1985, Senators from rural states used the filibuster to force Congress to address a major crisis in which thousands of farmers were on the brink of bankruptcy.
In 1995, the filibuster was used by Senators to protect the rights of workers to a fair wage and a safe workplace.
Now Mr. President, I will not stand here and say the filibuster has always been used for positive purposes.
Just as it has been used to bring about social change, it was also used to stall progress that this country needed to make. It is often shown that the filibuster was used against Civil Right legislation. But Civil Rights legislation passed ”“ – Civil Rights advocates met the burden.
And it is noteworthy that today the Congressional Black Caucus is opposed to the Nuclear Option.
For further analysis, let’s look at Robert Caro, a noted historian and Pulitzer Prize winner.
At a meeting I attended with other Senators, he spoke about the history of the filibuster. He made a point about its legacy that was important. He noted that when legislation is supported by the majority of Americans, it eventually overcomes a filibuster’s delay ”“ as public protest far outweighs any Senator’s appetite to filibuster.
But when legislation only has the support of the minority, the filibuster slows the legislation ”¦prevents a Senator from ramming it through”¦and gives the American people enough time join the opposition.
Mr. President, the right to extended debate is never more important than when one party controls Congress and the White House. In these cases, the filibuster serves as a check on power and preserves our limited government.
Right now, the only check on President Bush is the Democrats ability to voice their concern in the Senate.
If Republicans roll back our rights in this Chamber, there will be no check on their power. The radical, right wing will be free to pursue any agenda they want. And not just on judges. Their power will be unchecked on Supreme Court nominees”¦the President’s nominees in general”¦and legislation like Social Security privatization.
Of course the President would like the power to name anyone he wants to lifetime seats on the Supreme Court and other federal courts.
And that is why the White House has been aggressively lobbying Senate Republicans to change Senate rules in a way that would hand dangerous new powers to the President over two separate branches ”“ the Congress and the Judiciary.
Unfortunately, this is part of a disturbing pattern of behavior by this White House and Republicans in Washington.
From Dick Cheney’s fight to slam the doors of the White House on the American people”¦
To the President’s refusal to cooperate with the 9-11 Commission”¦
To Senate Republicans attempt to destroy the last check in Washington on Republican power”¦
To the House Majority’s quest to silence the minority in the House”¦
Republicans have sought to destroy the balance of power in our government by grabbing power for the presidency, silencing the minority and weakening our democracy.
America does not work the way the radical right-wing dictates to President Bush and the Republican Senate Leaders. And Mr. President, that is not how the United States Senate works either.
For 200 years, we’ve had the right to extended debate. It’s not some “procedural gimmick.’
It’s within the vision of the Founding Fathers of our country. They established a government so that no one person ”“ and no single party ”“ could have total control.
Some in this Chamber want to throw out 217 years of Senate history in the quest for absolute power.
They want to do away with Mr. Smith coming to Washington.
They want to do away with the filibuster.
They think they are wiser than our Founding Fathers.
I doubt that’s true.
Well! As Groucho once said:
These are my principles. If you don’t like them … well, I have others.
Just remember: what goes around comes around. Given how things have been going for the Democrats lately, the composition of the Senate may be a little different after 2014.
10 Comments
False equivalency. What the Republicans have been doing goes far beyond the filibuster. With respect to the judiciary, it is court packing. With respect to executive appointments, it is an attempt to nullify the results of the last two Presidential elections.
When Harry Reid spoke in 2005, it was in the context of the Bush administration nominating a series of hard right jurists to the courts. The Democrats filibustered. A deal was struck where the Democrats would allow the judges to be confirmed, and neither party would filibuster judicial appointments absent “extraordinary circumstances.”
Fast forward to 2013, and President Obama nominates three centrist jurors to the Court. Nina Pillard is an uncontroversial Professor at Georgetown Law. Patricia Millett is a constitutional lawyer who has argued 32 cases in front of the Supreme Court. Robert Wilkins is a respected District Court judge in Washington. None of these nominees are “left wing”, and none of them were challenged by Republicans on the grounds of competence or ideolody.
Let’s review. When Bush was President, he got his nominees through, including jurists with extremist views, such as Janice Rogers Brown. Now that Obama is President, the GOP went back on the agreement they made in 2005, and refused to approve his nominees, The Bush nominees were largely at the extreme end of the spectrum of judicial opinions, and were properly controversial. The Obama nominees are neither.
FDR tried to pack the Court by expanding the number of judges, so its rulings would be more congenial to his agenda. This power grab was rightly blocked. Republicans are packing the Court in reverse, by reducing the number of judges, so its rulings would be more congenial to their agenda. This power grab was also rightly blocked.
This is also a false equivalency because filibusters have moved from isolated events to the routine. Half of all filibusters of Presidential appointments have occurred during the Obama administration. All legislation with even a whiff of controversy is now subject to a sixty vote threshold. Both are unprecedented in American history. The difference in degree has led to a difference in kind. This has nothing to do with the tyranny of the majority, and everything to do with a party which loses elections trying to block the winning party from effecting its agenda by refusing to allow it to staff both the executive and the judiciary.
Senator Grassley said that the reason he filibustered non-controversial nominees is that failing to do so would allow Obama to “change the ideological balance of the Court.”: Needless to say, he had no such concerns when Bush did that very thing, and along with his colleagues he went back on his word after Democrats allowed Republican judges to be appointed, now that Republicans find themselves in the minority. The President has both the right and the obligation to appoint judges. The party which loses elections does not have the right to call the shots by imposing a judicial blockade. The filibusters were a naked power grab, and Harry Reid acted property in eliminating them.
No, it is the filibuster. How can a thing go far beyond itself?
You can’t pack a thing by refusing to put things in it.
Mr. Reid’s argument in 2005 was an invocation of venerated principles. His action in 2013 sets aside those principles — which presumably will have the same weight in 2015 as they did in 2005 — in favor of a temporary tactical advantage.
Furthermore, you ignore the most important of the principles cited by both the President and Mr. Reid: that democracy’s most terrifying defect is its susceptibility to oppression, by elected majorities, of minorities and minority viewpoints. Mr. Obama Tweeted yesterday, in a statement that should strike fear into all thoughtful Americans, that “If you’ve got a majority of folks who believe in something, then it should be able to pass.” He then had the audacity to invoke the Founders in support of this horrifying endorsement of mob rule.
Really? What a bare majority wants, a bare majority gets? Imagine the possibilities, for an envious and fully empowered mob, in alignment with an aggressive and popular Executive and a compliant judiciary. Seizure of property? Religious oppression? Economic servitude? Jim Crow? (You don’t even have to imagine, because history is replete with examples. Indeed, 1789, the year that the now-defunct Senate rule went into effect, was a significant year overseas in this regard. As was 1933.)
This is what the Founders feared above all, and the explicit purpose of the Senate (and the filibuster) is to act as a brake upon it it.
For God’s sake, Peter, wake up! Just for once, can’t you stop being such a sock-puppet and give a thought to how precious, and how fragile, your liberties are?
A thing goes beyond itself when it is used differently and to a much greater extent than ever before. Throughout American history, the filibuster has been used rarely, and (with respect to Presidential nominations) only to block particularly egregious nominees. It is now used routinely to block nominees not because there is anything wrong with them, but simply because they are Obama’s nominees. Hence the filibuster has gone beyond itself because it is no longer used as a hurdle for controversial nominees to cross, but instead as a blunt instrument to prevent the executive from effecting its entire agenda.
You pack a Court by increasing the number of judicial votes to effect a desired outcome. You pack a Court in reverse by decreasing the number of judicial votes to effect a desired outcome.
The principles espoused by Reid in 2005 concern blocking extremist judges from having a lifetime sinecure. The principles espoused by Reid in 2013 concern allowing a President to have centrist judges full vacant seats. The controversy in 2005 concerned the qualifications of individual judges. In 2013, the judges’ qualifications are not in question, and the controversy revolves around whether a President can be blocked from fulfilling his Constitutional responsibility to nominate federal judges.
Yep. What a bare majority wants, a bare majority should get (provided what the majority wants is Constitutional). If 51 Senators vote to replace the opening prayer of Senate sessions with Country Joe’s Fish Cheer, that’s fine by me. If they vote to enact Obamacare or repeal Obamacare, that’s fine too. This principle is valid regardless of which party holds the levers of power and regardless of the agendum being enacted or repealed. I think that filibusters are wrong in all situations, but especially in this one, when the original intent of the filibuster is abandoned and it is used instead as a way for the side which loses elections to force their will on the side which wins elections.
The filibuster has nothing to do with preserving liberty, as it can be used to block the expansion of liberty as easily as it can be used to restrict it. Before President Obama was elected, the filibuster was used most prominently by segregationists blocking legislation which integrated schools, restaurants, and bathrooms (as well as many other basic Constitutional rights denied to blacks in the Confederacy). The use of the filibuster in this and other instances was precisely in order to limit precious and fragile liberties, and not the other way around.
Did you even read what Harry Reid said in 2005? He rebuts everything you say here.
I can’t help feeling that if the sides were reversed here, so would your opinion be. At the very least, throwing around words like ‘extremist’ carries no weight whatsoever. Why, even a failure to approve of gay marriage, the President’s own position not two years ago, is now considered ‘extremist’.
I disagree with what Harry Reid said in 2005. I am opposed to all filibusters, while Reid supports those filibusters which are used to block controversial or extremist nominees.
My point is simply that the situation is vastly different now than it was in 2005, as outlined above. Moreover, because the Democrats allowed Bush’s nominees to be confirmed back then, there is no excuse for Republicans to block Obama’s nominees now. If Bush has the right to fill courts with judges who are aligned with the Republican philosophy of jurisprudence, then Obama has the right to fill courts with judges who are aligned with the Democratic philosophy of jurisprudence.
As noted above, if the sides were reversed here, my thinking would be unchanged. If Republicans control the White House and the Senate and they want to appoint judges who would overturn Roe v. Wade, I have no problem with that. Elections have consequences, regardless of who wins them.
And there you have it, ladies and gentlemen. A complete political philosophy, in three parroted words. And a recipe for any imaginable form of tyranny.
Above all, Peter, I can’t help thinking that you simply have no intellectual understanding, or historical knowledge, of the seriousness of democracy’s cardinal defect.
Of course elections have consequences. That’s why we have them. Plenty of progressives opposed the invasion of Iraq, the evisceration of regulatory agencies, and Medicare Part D, but few (if any) questioned Bush’s legitimacy to pursue these agenda. Nor were they blocked by filibusters, shutting down the government, or threatening to default on government debt. Those who object to Obama’s exercise of his Constitutional prerogatives were silent about Bush’s exercise of the same prerogatives. Democrats accepted two elections’ results, while Republicans are doing everything they can to nullify them.
Nor is it “a recipe for any imaginable form of tyranny.” The things which protect us from tyranny are the separation of powers, the Bill of Rights, and the traditions of American governance, and not the filibuster. In those instances when the government was tyrannical — such as the internment of Japanese in World War II — filibusters and parliamentary maneuvers did nothing to stop it. There is no mechanism which will prevent Plessy v. Ferguson or the Alien and Sedition Act, and suggesting that restricting the will of the majority will make government actions fairer or more just has no basis in historical fact. As noted above, these restrictions can work contrary to liberty, as when segregationists used Rule 22 to deny basic rights to black Americans.
* * * *
The notion that the putative tyranny of the majority is “democracy’s cardinal defect” is at best arguable.
Much of the concerns expressed by the Founding Fathers was addressed in the Bill of Rights and subsequent amendments, which limit the ability of the majority to oppress the minority.
The cardinal defect of our original democracy — the enslavement of blacks and the restriction of voting to white, property-owning males — was later reversed by majority rule (and a Civil War). As noted above, majority rule can expand liberty as easily as restrict it.
When it comes to legislation and executive appointments, sclerosis is the enemy of efficacy. Sometimes majorities are wise and sometimes they are unwise. The Constitutional requirement of both houses of Congress and a Presidential signature is a high enough hurdle to passing legislation, and adding additional hurdles is an unnecessary and self-defeating obstacle to getting anything done.
But of course this isn’t what anyone is in fact suggesting, and it is a grave, and naive, misunderstanding to to imagine that this the purpose of antimajoritarian procedural rules. Democracy can lead to any result imaginable (although, as philosophers and scholars have always understood, and as history has borne out, it tends toward centralization of power and diminution of liberty).
What restricting the will of the majority does is place a brake upon sudden and usurpatious change, of the sort so often sought by an impetuous, factional, and often poorly informed populace, whipped up to a state of high emotion by charismatic leaders. As Harry Reid rightly pointed out in 2005, this is exactly what the Senate, with its long terms and state-by-state representation (whose members, originally, were not even selected by direct election at all), is for in the first place. This cardinal defect of democracy*, however — which has been recognized as such, by the way, since Plato, and in all ages since — was nevertheless considered by the Founders, despite all the architectural protections in the Constitution, to be so very worrisome that they also thought it necessary to provide the additional safeguard that we have now just discarded.
It is precisely the ‘efficacy’ you endorse, of unchecked majoritarianism, that gave Europe the Terror, and the Third Reich. Far better that there should be a healthy measure of the ‘sclerosis’ you deplore. In 2005, even Harry Reid agreed.
* The questionable, but popular (of course!) notion that a lack of universal suffrage was a ‘cardinal defect’ of our democracy, rather than a wise defense against its most dangerous defect, is something we can discuss another day.
The Senate was slow and ponderous even when filibusters were a rarity. Now that they are routine, it moves more slowly than the hard drive on my computer after eating a half dozen jelly donuts over it.
The cardinal defects of American democracy are the ability of money to buy elections, the pervasiveness of gerrymandering, and the inherent advantage which small states have over large states. The alleged tendency of the Senate to act with celerity is not among them.