US Senate Democrats vote to change filibuster rules

November 21, 2013 10:28 AM

You may find this brief history of the US Senate's filibuster fight timely and interesting, as the chamber just voted to end it for "executive branch and judicial nominees, except for the Supreme Court."
posted by Brandon Blatcher (160 comments total)

Chart showing how unprecedented GOP obstruction on Presidential appointments has been. This move was just about the least we could do to move toward having a functioning legislative branch, and will hopefully open the door for the complete elimination of the supermajority requirement.
posted by tonycpsu at 10:33 AM on November 21, 2013 [24 favorites]

Took them long enough. McConnell's statement, aside from being a blatant threat, is his typical ahistorical nonsense. He's shamelessly blocked all manner of legislation and appointments for no reason, and now that the power's been taken away from him he swears that th Democrats will "regret this." Because it's been reasonable debate and action for the greater good up until now, Mitch?
posted by 1adam12 at 10:34 AM on November 21, 2013 [14 favorites]

I have mixed feelings on this — the Republicans are undoubtably abusing a parliamentary procedure to the detriment of the country, and that can only be remedied with reform like this. On the other hand, I doubt we can count on a permanent Democratic president and Senate, and the rules can be used to make principled stands when necessary.

All part and parcel with the collapse of the American republic, I guess, as longstanding comity is ground to dust under extremists from the right wing.
posted by klangklangston at 10:34 AM on November 21, 2013 [38 favorites]

tony, there is no chart in your chart link.
posted by Aizkolari at 10:34 AM on November 21, 2013

Aizkolari: "tony, there is no chart in your chart link."

There is now. I was working on a post at the same time as Brandon and pasted the wrong link.
posted by tonycpsu at 10:35 AM on November 21, 2013

Danke.
posted by Aizkolari at 10:37 AM on November 21, 2013

This is great for judges, but overall, not sure it's worth it if the Democrats don't control the House.
posted by spaltavian at 10:39 AM on November 21, 2013 [1 favorite]

klangklangston: "I have mixed feelings on this — the Republicans are undoubtably abusing a parliamentary procedure to the detriment of the country, and that can only be remedied with reform like this. On the other hand, I doubt we can count on a permanent Democratic president and Senate, and the rules can be used to make principled stands when necessary."

What makes you think the GOP wouldn't change the rules in their favor as soon as they had the chance? Why wait for them to do it?
posted by tonycpsu at 10:39 AM on November 21, 2013 [12 favorites]

the rules can be used to make principled stands when necessary.

Yes, but the filibuster is an undemocratic procedure in a body that is already inherently undemocratic. Just because it's been around for a long time doesn't mean it's a feature and not a bug. Mr. Smith Goes to Washington was fiction, and recent history has shown that the filibuster is rarely used for noble purposes.
posted by stopgap at 10:40 AM on November 21, 2013 [29 favorites]

Never mind, just saw it's just for appointments.
posted by spaltavian at 10:41 AM on November 21, 2013 [1 favorite]

Pretty much what Klangklangston wrote. This change is extremely understandable and I suspect thought of as a win win for Republicans, who are thinking they have a better chance of running the Senate come 2014.

But whatcha gonna do? The problem was ridiculous years ago. Might as well try to work the system while you still can do some good.
posted by Brandon Blatcher at 10:41 AM on November 21, 2013 [1 favorite]

Not sure it's worth it if the Democrats don't control the House.

This rule change doesn't affect anything the House has any control over, and the House doesn't have a filibuster ability anyway. The Senate has sole approval over Presidential nominees, so it's not like the House is going to get to approve a new Attorney General or something. The filibuster rule change here apparently doesn't involve legislation, which is the only thing having a majority in the House would help with.
posted by LionIndex at 10:41 AM on November 21, 2013 [3 favorites]

Yeah, I'm somewhat ambivalent about it too. That being said, as Reid's Twitter pointed out, half of the filibusters on Presidential nominees in the entire history of the US were against Obama. The modern GOP is essentially refighting the Civil War by denying they lost most of the last midterm and Presidential-year elections by instituting de facto nullification. Also: yes, it's because the dude is black, considering that ideologically he runs to the right of Reagan and his signature achievement came from a conservative think-tank and several GOP Senators.

And just to get out in front of the usual know-nothing arguments: No, the Democrats were not enthusiastically opposed to the filibuster. The fact that it took five years and a dozen reluctant votes to partially remove the filibuster is ample proof of that. But there really was no other choice, either remove the roadblock and enable the government to work, or enable the GOP to say that no Democrat ever democratically elected to President with a Senate majority had the right to govern.
posted by zombieflanders at 10:43 AM on November 21, 2013 [112 favorites]

On the other hand, I doubt we can count on a permanent Democratic president and Senate

What happens when the shoe is on the other foot? The Supreme Court is tilted right-wing for the next twenty years or more, so it's not like keeping the filibuster around for Supreme Court justices helps restore balance, either.
posted by Blazecock Pileon at 10:44 AM on November 21, 2013 [3 favorites]

Notably, the Democrats had a chance to kill the filibuster at the beginning of this session of Congress, but declined to do so, opting for a "gentlemens' agreement" between the respective parties. Y'all can see from the chart how well that worked out.
posted by tonycpsu at 10:45 AM on November 21, 2013 [17 favorites]

Spaltavian: "This is great for judges, but overall, not sure it's worth it if the Democrats don't control the House."

This is only for Executive Branch appointments. The "advice and consent" role of the Senate.
posted by notsnot at 10:45 AM on November 21, 2013 [2 favorites]

Pretty much what Klangklangston wrote. This change is extremely understandable and I suspect thought of as a win win for Republicans, who are thinking they have a better chance of running the Senate come 2014.

Which is useless unless they not only win the Presidency in 2016, but also a Senate where they are defending at least 24 seats to the Democrats' 10.
posted by zombieflanders at 10:45 AM on November 21, 2013

The filibuster has always seemed a childish, pouty way for adults to act. Smacks of "I won't and you can't make me" while stamping one's little feet.
posted by Cranberry at 10:46 AM on November 21, 2013 [5 favorites]

My question is, why did they wait sooooo long? This shit has been ridiculous.
posted by annsunny at 10:47 AM on November 21, 2013 [2 favorites]

The Republicans are like kids who pull the fire alarm every five minutes, and then the Democrats have finally turned off the sprinklers for good and now the Republicans say, "Yeah, SMART, but what if there's a FIRE??"

Well, dude, we'll deal with that when it happens, but we can't do ANYTHING now.
posted by dirtdirt at 10:47 AM on November 21, 2013 [30 favorites]

It's worth reiterating that the filibuster still stands for everything except executive and judicial nominees put before the Senate, Supreme Court Justices not included.
posted by msbutah at 10:47 AM on November 21, 2013

I wonder how much of the Minority Reid would agree with Majority Reid.
posted by brent at 10:48 AM on November 21, 2013 [1 favorite]

Just in time for the latter half of Obama's second term! <facepalm>
posted by JHarris at 10:49 AM on November 21, 2013 [11 favorites]

Yes. Finally. Elections are supposed to matter. Let those elected enact, appoint, and govern. If they make a mess of it, vote 'em out.
posted by jetsetsc at 10:49 AM on November 21, 2013 [2 favorites]

I would now like to invite everyone to join me in a drinking game for this Sunday's talk shows: have a sip each time you hear someone use any variation on the word "precedent."

Go ahead and schedule your Monday sick leave now.
posted by psoas at 10:50 AM on November 21, 2013 [11 favorites]

When Norm Ornstein, of the American Enterprise Institute (home to Richard Perle, Newt Gingrich, and John Bolton) says "[The Republican actions were] begging for a return nuclear response.", it's pretty clear who started the fight.
posted by benito.strauss at 10:51 AM on November 21, 2013 [5 favorites]

Just in time for the latter half of Obama's second term!

The midterm elections are still a year away. A lot can be done in that time. Let's not hurry 2014 or 2016 just yet.
posted by roomthreeseventeen at 10:51 AM on November 21, 2013 [1 favorite]

psoas: "I would now like to invite everyone to join me in a drinking game for this Sunday's talk shows: have a sip each time you hear someone use any variation on the word "precedent.""

Almost as fun as the Bill Frist "UP OR DOWN VOTE" drinking game from the last fight over judicial nominations.

And by "fun", I mean "bring your own stomach pump."
posted by tonycpsu at 10:53 AM on November 21, 2013 [1 favorite]

My question is, why did they wait sooooo long? This shit has been ridiculous.

Reid didn't have the votes until now. A few Senators got pushed over the edge with frustration on this with some of the recent obstruction.

As far as the judicial fillibusters, Democrats raised it to an unprecedented level under Bush. Yes, Republicans took that even further but this whole thing is pure two party system shenanigans. These nominees do deserve up or down votes, the Republicans were right about that during the Bush years and the Democrats were wrong. Now they exchange positions because doing the right thing doesn't matter.
posted by Drinky Die at 10:55 AM on November 21, 2013 [7 favorites]

It's worth reiterating that the filibuster still stands for everything except executive and judicial nominees put before the Senate, Supreme Court Justices not included.

The Supreme fillibuster will be nuked too as soon as either side attempts it.
posted by Drinky Die at 10:58 AM on November 21, 2013

I recall some of this happening under Clinton, Is that right?

NM - already answered.
posted by annsunny at 10:59 AM on November 21, 2013 [1 favorite]

ZF, I gotta quibble with "unprecedented." Take a look here. Going from 85% under Reagan, to 71% under Clinton, to 67% under Bush just sounds like a long, slow slide toward obstruction, not any kind of significant escalation of it.
posted by tonycpsu at 11:00 AM on November 21, 2013 [5 favorites]

Bear in mind that there are other ways to block nominees that the vote didn't touch. For instance, that EPA official who's been waiting almost three years for a vote? Not being filibustered. He's subject to a "legislative hold" that prevents his nomination from even being talked about on the floor, and also takes 60 votes to overcome.
posted by Holy Zarquon's Singing Fish at 11:00 AM on November 21, 2013 [9 favorites]

As far as the judicial fillibusters, Democrats raised it to an unprecedented level under Bush. Yes, Republicans took that even further but this whole thing is pure two party system shenanigans.

Not particularly true.
posted by zombieflanders at 11:01 AM on November 21, 2013 [5 favorites]

Whoops, I meant to direct my last comment toward Drinky, not zombieflanders. Sorry 'bout that.
posted by tonycpsu at 11:02 AM on November 21, 2013

FRIENDLY FIRE! WE HAVE A ZOMBIE DOWN, REPEAT A ZOMBIE DOWN!
posted by zombieflanders at 11:05 AM on November 21, 2013 [7 favorites]

The Real Roots of the Filibuster Crisis

There has never been a president, at least in our lifetimes, whose legitimacy was so frequently questioned in both word and deed by the opposition party and its adherents. Even today, many Republicans, including some members of Congress, refuse to believe that Obama was born in the United States. Right after he was re-elected, 49 percent of Republicans told pollsters they thought ACORN had stolen the election for Obama, a decline of only 3 points from the number that said so after the 2008 election, despite the fact that in the interim, ACORN had gone out of business. Think about that for a moment. How many times have you heard conservatives say that the Affordable Care Act was "rammed through" Congress, as though a year of debate and endless hearings and negotiations, followed by votes in both houses, followed by the president's signature, was somehow not a legitimate way to pass a law? In short, we've seen this again and again: it isn't just that Republicans consider Obama wrong about policy questions or object to the substance of one or another of his actions, it's as though they don't quite accept that he's the president, and everything he does carries for them the taint of illegitimacy.
[...]
The outcome Democrats would probably most prefer is what happened the last time we went through this, in 2005. In that case the controversy was over a group of Bush appointees who were true radicals, none more so than Janice Rogers Brown, who calls the New Deal a "socialist revolution" and says things like, "In the heyday of liberal democracy, all roads lead to slavery." That controversy ended with an agreement in which Bush got his nominees—Brown now sits on the D.C. Circuit—and Democrats promised to use the filibuster only in "extraordinary circumstances." In other words, it was a complete win for the Republicans. The biggest difference between then and now is that Democrats never questioned whether Bush had the right to fill judicial vacancies; they had specific objections to particular nominees.

In the various flare-ups of the birther controversy, reporters would occasionally ask Republican members of Congress very basic questions, like "Do you think the President was born in the United States?" The answers were incredibly revealing. Some simply said yes, but others hemmed and hawed, saying things like "It's not my responsibility to tell people what to think" or "I take him at his word," as though there were still some doubt. It's time they got asked the same kind of questions about this crisis. If you asked Republicans, "Does Barack Obama have the right to fill judicial vacancies?", I honestly have no idea what they'd say. But it would be interesting to find out.

posted by zombieflanders at 11:08 AM on November 21, 2013 [49 favorites]

tonycpsu and zf, I am talking about unprecedented use of judicial filibusters. Not obstruction via other means, or use of the filibuster in total for all purposes. The tactic of using the filibuster to block large numbers of judicial nominations was essentially invented by the Democrats in 2003.
posted by Drinky Die at 11:08 AM on November 21, 2013 [1 favorite]

Drinky Die: "tonycpsu and zf, I am talking about unprecedented use of judicial filibusters. Not obstruction via other means, or use of the filibuster in total for all purposes. The tactic of using the filibuster to block large numbers of judicial nominations was essentially invented by the Democrats in 2003."

Cite, please? I cited numbers showing that they increased their rejection of nominees to appellate courts by only 4%. How is that "inventing" the process of blocking them?
posted by tonycpsu at 11:10 AM on November 21, 2013 [6 favorites]

I'd be kind of interested in seeing a professional game designer playtest and rebalance the Senate and House rules. "Remove one filibuster from your party's hand and place on the discard pile to bring a bill of your choice out of the legislative hold pile."
posted by jason_steakums at 11:10 AM on November 21, 2013 [29 favorites]

Another chart that breaks it down by district/circuit court, but only goes back to Clinton.
posted by tonycpsu at 11:15 AM on November 21, 2013

We have never before had a situation where the minority party was so committed to undermining the government it has been elected to serve in. The times have changed. This rule goes some way to fixing the problem today and for future Senates led by either party. The American government needs to function.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:16 AM on November 21, 2013 [9 favorites]

And another, using the "mean days until confirmation" metric.
posted by tonycpsu at 11:16 AM on November 21, 2013

tony, I don't know how I can be more clear that I am talking about use of a specific method of obstruction and not the total amount of obstruction.
posted by Drinky Die at 11:17 AM on November 21, 2013

Well, you could start by showing some data and not just restating your belief.
posted by tonycpsu at 11:18 AM on November 21, 2013 [15 favorites]

Here's one of just cloture votes on executive nominees.
posted by tonycpsu at 11:20 AM on November 21, 2013

I have to think that holds are doomed in the medium term, as well. Lindsey Graham's "hold all appointments" thing is ridiculous.
posted by Chrysostom at 11:21 AM on November 21, 2013

tony, go back to that wiki article. This is the part I'm going on about:

On February 12, 2003, Miguel Estrada, a nominee for the D.C. Circuit, became the first court of appeals nominee ever to be successfully filibustered.[citation needed] Later, nine other conservative court of appeals nominees were also filibustered. These nine were Priscilla Owen, Charles W. Pickering, Carolyn Kuhl, David W. McKeague, Henry Saad, Richard Allen Griffin, William H. Pryor, William Gerry Myers III and Janice Rogers Brown.[11] Three of the nominees (Estrada, Pickering and Kuhl) withdrew their nominations before the end of the 108th Congress.

Judicial filibusters were not new, but using them successfully and simultaneously against a large group of nominees was. This is the behavior Republicans went turbo on and expanded in the executive branch that forced the Democrats to go nuclear.
posted by Drinky Die at 11:24 AM on November 21, 2013 [1 favorite]

We have never before had a situation where the minority party was so committed to undermining the government it has been elected to serve in. The times have changed. This rule goes some way to fixing the problem today and for future Senates led by either party. The American government needs to function.

My dad put it pretty well this morning:

The GOP told Obama when he was elected that they were going to destroy his presidency and sabotage the government they believe shouldn't exist. Unfortunately for us, he was the last person to believe it.

This is the behavior Republicans went turbo on and expanded in the executive branch that forced the Democrats to go nuclear.

As I pointed out above, the first to make it a thing in the Executive branch was the GOP minority in the 103rd Congress.
posted by zombieflanders at 11:26 AM on November 21, 2013 [9 favorites]

My question is, why did they wait sooooo long? This shit has been ridiculous.


I think part of the problem is that neither party has quite have enough hubris to believe they will always remain in power.
posted by craven_morhead at 11:29 AM on November 21, 2013 [1 favorite]

There's also a vast reverence for precedent and "the way we've always done things" among Senators. It can be very difficult to change anything there. They call themselves the world's greatest deliberative body, and some of them actually seem to believe it.
posted by Chrysostom at 11:32 AM on November 21, 2013 [1 favorite]

tonycpsu, your link at 12:16 isn't working right.
posted by annsunny at 11:33 AM on November 21, 2013 [1 favorite]

The filibuster, as far as I can tell, has mostly been used for politically regressive purposes throughout its lifetime, giving even more preposterously lopsided power to tiny states at the expense of big ones than the Senate already does by its nature. Senate Democrats were, I suspect, long opposed to filibuster reform not for the good of the party or nation but because filibuster reform lessens the power that senators as individuals possess.

Also, the Democrats don't really need to worry about the Republicans using this to their advantage until 2016, because Obama still has the veto till then.
posted by shivohum at 11:33 AM on November 21, 2013 [4 favorites]

Sen. Carl Levin (D-MI): Senate Floor Statement on Proposed 'Nuclear Option'

Today, we once again are moving down a destructive path. The issue is not whether to change the rules. I support changing the rules to allow a President to get a vote on nominees to executive and most judicial positions. This is not about the ends, but means. Pursuing the nuclear option in this manner removes an important check on majority overreach which is central to our system of government. As Senator Vandenberg warned us, if a Senate majority decides to pursue its aims unrestrained by the rules, we will have sacrificed a professed vital principle for the sake of momentary gain.

...

Just as I have implored my Democratic colleagues to consider the implications of a nuclear option that would establish the precedent that the majority can change the rules at will, it is just as urgent for my Republican colleagues to end the abuse of rules allowing for extended debate that are intended to be invoked rarely.

Some of my Democratic colleagues may rightfully ask, if a Democratic majority cannot initially muster a supermajority to end filibusters or change the rules, then what can the majority do?

The rules give us the path, and that is to make the filibusterers filibuster. Let the Majority Leader bring nominations before the Senate, and let the Senate majority force the filibusterers to come to the floor to filibuster. The current rules of the Senate allow the Presiding Officer to put the pending question to a vote when no Senator seeks recognition. Let us, as the Senate majority, dedicate one week, or just one weekend, or even just one night to force the filibusterers to filibuster. In 2010, in testimony before the Rules Committee on this subject, Senator Byrd said:

“Does the difficulty reside in the construction of our rules, or does it reside in the ease of circumventing them? A true filibuster is a fight, not a threat, not a bluff. … Now, unbelievably, just the whisper of opposition brings the ‘world’s greatest deliberative body’ to a grinding halt. … Forceful confrontation to a threat to filibuster is undoubtedly the antidote to the malady.”

Before a Senate majority assumes a power that no Senate majority before us has assumed, to change the rules at the will of the majority, before we do something that cannot easily be undone, before we discard the uniqueness of this great institution, let us use the current rules and precedents of the Senate to end the abuse of the filibuster. Surely we owe that much to this great and unique institution.

posted by BobbyVan at 11:34 AM on November 21, 2013 [8 favorites]

annsunny: "tonycpsu, your link at 12:16 isn't working right."

Gah, I suck for not previewing.

Here's the one I was trying to link to.
posted by tonycpsu at 11:35 AM on November 21, 2013

The filibuster, as far as I can tell, has mostly been used for politically regressive purposes throughout its lifetime, giving even more preposterously lopsided power to tiny states at the expense of big ones than the Senate already does by its nature. Senate Democrats were, I suspect, long opposed to filibuster reform not for the good of the party or nation but because filibuster reform lessens the power that senators as individuals possess.

The filibuster, by its nature, is an undemocratic method for the minority to block majority legislation. It is an inherently conservative instrument.
posted by kafziel at 11:40 AM on November 21, 2013 [1 favorite]

What happens when the shoe is on the other foot?

Government ought to be able to govern. The people's elected representatives ought to be able to pass legislation; if the people disapprove, we can respond by kicking them out of office and electing people who will pass different legislation.

Frankly, you might as well ask why we allow elections at all while "our" side is in power, if it means the "bad guys" might one day have power. That's how democracy works. That's what democracy is. If the American people want Republicans in power, let them have them, and let Republican policies be enacted, and if people don't like it - well, again, that's democracy.
posted by Tomorrowful at 11:41 AM on November 21, 2013 [35 favorites]

Finally.
posted by Flunkie at 11:41 AM on November 21, 2013 [1 favorite]

The right-wing noise machine is currently as busy on Twitter as it is disconnected from reality.
posted by one more dead town's last parade at 11:42 AM on November 21, 2013

This was worth it, as long as Obama is ready to go with hundreds of judicial nominees to every single federal court vacancy.

The Republicans have been agressively packing the courts with strident right wing idealogues like Roberts and Alito for decades, the Democrats have not kept up and this has been a MAJOR failing under Obama. Just look to the 5th Circuit travesty this month to see what effect this has had on the judicary. Obama can't continue to drag his feet until after the 2014 elections, those vacancies need to get filled with reasonable, non-Robertsonian hack judges while the window is now open.

Obama's policy agenda is dead, between the botched Obamacare rollout and Republican obstruction, nothing was going to get done anyway. The least he and Reid can do is try and mitigate the damage through lifetime appointments.
posted by T.D. Strange at 11:43 AM on November 21, 2013 [15 favorites]

klangklangston: "I have mixed feelings on this — the Republicans are undoubtably abusing a parliamentary procedure to the detriment of the country, and that can only be remedied with reform like this. On the other hand, I doubt we can count on a permanent Democratic president and Senate, and the rules can be used to make principled stands when necessary."

What makes you think the GOP wouldn't change the rules in their favor as soon as they had the chance? Why wait for them to do it?


To be fair, they backed down from this and took a deal. I suspect the GOP Senate caucus is too split to offer any sort of a deal to pass specified nominees in exchange for not employing the nuclear option.

Don't forget, the term "nuclear option" was first used to describe the GOP push to do this exact thing in the Bush Administration.

You wonder if the Republicans will be able to make any one pay.
posted by Ironmouth at 11:45 AM on November 21, 2013

The right-wing noise machine is as busy on Twitter as they are disconnected from reality.

And once again, I suck at understanding Twitter.

They're yelling about it on Twitter with creative hashtags and everything ... and so? Isn't it just the same set of people reading and writing and re-tweeting the stuff round and around? Does that make any difference? Or is it all about winning the perception war on Twitter and setting the agenda for the news cycle (barf)? They already have Fox and CNN to do that for them.
posted by RedOrGreen at 11:45 AM on November 21, 2013 [1 favorite]

T.D. Strange, I find some fault in Obama for not pushing the pace a bit, but it's not like nominating these people just to have them blocked takes zero effort on his part. His staff has to vet a bunch of possible nominees, see if they're interested, look into their backgrounds... Why would he waste the effort if he knew they'd get blocked? The worst outcome would be that he or his staff would consciously or subconsciously start nominating more conservative nominees just to appease the hostage takers.
posted by tonycpsu at 11:47 AM on November 21, 2013 [1 favorite]

let us use the current rules and precedents of the Senate to end the abuse of the filibuster

Reid tried that, by using the precedents of "comity" and "gentleman's agreement" to reach at least one bargain with McConnell. The Republicans decided it was more important to prevent Obama from appointing judges to the Fifth Circuit than to abide by that agreement.

You can tell the Republicans aren't acting in good faith when they open their mouths describe the act of appointing judges to vacant seats as "packing the court."
posted by Gelatin at 11:47 AM on November 21, 2013 [12 favorites]

Jonathan Chait explains how we got here:

Senate Democrats changed the rules because they felt burned by Republicans. In 2005, Senate Republicans threatened to carry out the same nuclear rules change, and Democrats backed down. One of the judges Democrats agreed to let through, Janice Rogers Brown, holds radical libertarian beliefs, and just struck down Obama’s birth-control-insurance mandate. The double standard in which a Republican president can seat a Janice Rogers Brown and a Democratic president can’t even seat moderates judges with bipartisan support like Patricia Millett became too galling for Democrats to stand.

More from Dave Weigel here. Larger picture, from EJ Dionne: "Why nuclear now? Filibusters of judicial nominees: 36 in 41 years, 1967-2008, and 31 in the five Obama years".

Republicans used to say that elections have consequences; they've engaged in unprecedented obstructionism since they lost the White House. Actions have consequences. This isn't where most Democrats want to be, but, what else can they do?
posted by ibmcginty at 11:48 AM on November 21, 2013 [9 favorites]

Planet Money did a great piece on the filibuster problem: Episode 422: Schoolhouse Rock Is A Lie (Or, How The Filibuster Ate Washington)
posted by craven_morhead at 11:50 AM on November 21, 2013 [2 favorites]

Speaking of precedent, if anything it's a good one. The filibuster is gone only for judicial nominations -- but now that Reid pressed the button once, perhaps Republicans will be a little more hesitant to demand a heretofore nonexistent supermajority requirement for absolutely everything and use the filibuster with more restraint.

(And then, maybe, the so-called "liberal media" will stop referring to "the 60-vote requirement to pass legislation" or similar.)
posted by Gelatin at 11:51 AM on November 21, 2013 [4 favorites]

Filibuster explained by Mean Girls
posted by roomthreeseventeen at 11:52 AM on November 21, 2013 [3 favorites]

Sen. Carl Levin (D-MI): Senate Floor Statement on Proposed 'Nuclear Option'

Carl Levin is, to put it mildly, a dinosaur, and this is coming from someone who knows his former Chief of Staff. It's 2013, and the old-boy's Senate he immersed himself in doesn't exist. It's a Senate where an old-school filibuster could mean not just a government shutdown, but the country defaulting on its debt. Or not filling any positions needed just to keep the government running. Or even to prevent a return to Jim Crow laws (now with bonus anti-LGBT hatred!). For decades, there's been a tacit, implicit agreement between Senators, but having that uppity fella with the funny name in the White House changed that.

On preview: Kind of what Gelatin said.
posted by zombieflanders at 11:52 AM on November 21, 2013 [6 favorites]

Also some reporter yelled out "Is this political war?" (I think it was CNN's Candy Crowley). Uh, its been a political war since 2008.
posted by Ironmouth at 11:53 AM on November 21, 2013 [4 favorites]

Why would he waste the effort if he knew they'd get blocked?

Reasonable question, but at this point he has nothing else to do other than twiddle his thumbs while the code-monkeys work on Healthcare.gov, no White House staffer should be working on anything else until all the vacancies are filled. Obama should be making phone calls to prospective appointees personally, the rest of his agenda is totally lost, this should be now proritity one, and to the extent it isn't, he's failing Democrats.
posted by T.D. Strange at 11:53 AM on November 21, 2013 [4 favorites]

Sorry for missing this information, but can Reid bring the three stalled Fifth Circuit nominees up for a vote again? If memory serves me correctly, each of them will certainly receive a majority of the confirmation vote.
posted by Gelatin at 11:53 AM on November 21, 2013

I just don't understand how or why democrats have finally grown a spine.

It's almost as if they believe we elected them because they weren't republicans.
posted by Pogo_Fuzzybutt at 11:56 AM on November 21, 2013 [2 favorites]

do keep talking about what the Founding Fathers would have thought

The Founding Fathers never envisioned Congress as a European-style parliamentary system.
posted by Gelatin at 11:58 AM on November 21, 2013

I just don't understand how or why democrats have finally grown a spine.

For Reid and Obama? I would assume it would be because they both survived 2012 and kept the Senate in their control. Time is now to achieve whatever they can at all cost because 2014 and 2016 are going to be tough.
posted by Drinky Die at 12:01 PM on November 21, 2013

This is only for Executive Branch appointments

Yeah, see my second post. I missed it was only for appointments. Though, I doubt it will stop there. Next change in control of the chamber, I think the filibuster is going to take another hit.
posted by spaltavian at 12:02 PM on November 21, 2013

Current Judicial Vacancies
Total Vacancies: 93
Total Nominees Pending: 51
posted by T.D. Strange at 12:03 PM on November 21, 2013 [5 favorites]

Frankly, you might as well ask why we allow elections at all while "our" side is in power, if it means the "bad guys" might one day have power. That's how democracy works. That's what democracy is. If the American people want Republicans in power, let them have them, and let Republican policies be enacted, and if people don't like it - well, again, that's democracy.

I'm sorry, but a democracy means that the will of the people tends to get done in legislation. The United States is not a democracy. It is a republic that has a corrupted and barely functioning political class that is largely comprised of millionaires who don't have a clue about what the every day needs of average Americans could be.

In order to transition away from government designed to perpetuate this political class, we need to vote them all out of office and replace them with scientists, engineers, teachers, line cooks, policemen -- let's just say anyone who is not a lawyer and already a millionaire for the next fifteen years or so.

Changing these rules is just more political theater. As long as Congress is filled with millionaire lawyers and businessmen, and run by out-of-touch millionaire senior citizens, nothing is going to change. They will continue to act in their self interest, which may include something for you if that helps them win an election, if you are lucky. But they will spend most of their days talking to lobbyists, taking bribes (helpfully called political donations), and not caring about you or your family if getting legislation done means they could possibly lose their office. Instead, they see their job as a simple way to bankroll an easy position of power and influence that will surely return more money into their pockets once they enter the never-ending ecosystem of lobbyists and PACs that direct the affairs of our nation in secret.

And in order to vote those millionaires out, we'd need some kind of election process that doesn't typically hand over the election to whomever has raised the most money. We'd have to get Congress to pass strong anti-corruption laws and then start throwing legislators in prison for a couple of months and stripping them of their office and of their wealth gained through their illegal activity. In other words, we'd have to ask our corrupt political class to stop being corrupt and police themselves more effectively.

tl:dr; start filling out those emigration forms.
posted by deanklear at 12:04 PM on November 21, 2013 [12 favorites]

Don't Believe the Republican Cries of Vengeance (emphasis in original)

So now the Democrats have exercised the "nuclear option," which is not particularly nuclear. They've changed existing Senate rules so that judicial nominations can not be filibustered, but can pass with a majority vote. Over the next couple of days you'll hear Republicans say that this is the most horrifying power grab since the February Revolution of 1917. They will weep and beat their breasts, lamenting the death of fairness and democracy, predicting all manner of horrors, perhaps culminating in a zombie apocalypse, now that a judge nominated by the president can be confirmed with a vote of a majority of senators. But then, their grief will turn to steely determination. "You shall rue this day!", they will cry. "Revenge shall be ours!"

And that might sound like a reasonable argument for why this rule change was ill-advised. After all, as Iowa senator Chuck Grassley recently threatened, "So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases that we'd love to put on the bench." In other words, without the restraint of the filibuster, the next time Republicans have the White House and the Senate, which will happen eventually, they'll go hog-wild, appointing the most radical conservatives they can find. But there's one big reason that argument fails: They would have done it anyway.

Let's not be naive here. The Republican party of today is not only ideologically radical but procedurally radical as well. They've taken virtually every opportunity they could to upend whatever rules and norms stood in the way of them getting what they want. Let's say that it's 2017 or 2021, and they've won the presidency and the Senate. Can anyone believe that if on this day in 2013 the Democrats decided to keep the filibuster for judicial nominations, Republicans would then do the same out of a sense of fair play? This is the party that over the last five years has filibustered literally every bill of greater consequence than renaming a post office. This is the party that got conservatives on the Supreme Court to upend the Voting Rights Act, then literally within days began passing one law after another to make it as hard as possible for minorities, students, and anyone else likely to vote Democratic to cast their ballots. This is the party that shut down the government in its endless quest to repeal the Affordable Care Act. This is the party that sincerely believes that its opponents are attempting to destroy America, and therefore any tactics are justified in order to stop them.

posted by zombieflanders at 12:06 PM on November 21, 2013 [48 favorites]

"And in order to vote those millionaires out, we'd need some kind of election process that doesn't typically hand over the election to whomever has raised the most money. We'd have to get Congress to pass strong anti-corruption laws and then start throwing legislators in prison for a couple of months and stripping them of their office and of their wealth gained through their illegal activity. In other words, we'd have to ask our corrupt political class to stop being corrupt and police themselves more effectively."

Congress did pass campaign finance reform, and the Supreme Court gutted it with Citizens United. That's why this filibuster reform DOES matter, if only at the margins, by allowing some more progressive judges to get confirmed, if (at this point) only at the Circuit level.
posted by jetsetsc at 12:12 PM on November 21, 2013 [4 favorites]

Breaking:

*50* Senators now required to hobble executive appointment via filibuster!

41 still enough to shut down legislation.
posted by weston at 12:15 PM on November 21, 2013 [4 favorites]

Last night, I listened to an interview on All Things Considered on NPR with Sen. Tom Harkin who supported removing the filibuster. He addressed many arguments of those like Sen Carl Levin who supported keeping the filibuster, but it was his last answer that persuaded me the filibuster had to go. Emphasis mine.

SIEGEL: Just one other point that Senator Levin has raised. What about - if there still are filibusters - just requiring people to filibuster and to stay there all weekend long or all night long and hold the floor, as Senator Cruz in his non-filibuster did?

HARKIN: Well, because the way the rules, the way the Senate is set up, you can have basically one or two people filibustering and they don't even have to be here. They can put in a quorum call vote and go off and do different things. Cruz didn't have to do what he did. He was just doing it for showmanship.

But there are so many ways of filibustering without sitting on the floor. And, you know, Robert, I think there's a dirty little secret in the United States Senate that we all know but most of the people in America don't know. A senator has his or her power not because of what we can do but because of what we can stop. And no senator wants to give that power up. We each have to give up that little bit of power for the good of the whole country.
posted by nooneyouknow at 12:18 PM on November 21, 2013 [22 favorites]

41 still enough to shut down legislation.

I would anticipate it will be gone the next time a party is in position to take advantage of ending it and is facing serious obstruction. Good riddance, even if it does mean Republicans being in power is even more shitty.
posted by Drinky Die at 12:27 PM on November 21, 2013

Tom Harkin was for filibuster reform way before it was cool (1995) and, notably, when he was in the minority.
posted by tonycpsu at 12:28 PM on November 21, 2013 [7 favorites]

The Founding Fathers never envisioned Congress as a European-style parliamentary system.

The Founding Fathers never envisioned Congress as having women, or popularly-elected Senators, or a black man at the head of the entire armed forces, or any number of other things that we now take for granted. The Founding Fathers did not envision America as it exists today.
posted by Tomorrowful at 12:37 PM on November 21, 2013 [9 favorites]

The United States is not a democracy. It is a republic that has a corrupted and barely functioning political class that is largely comprised of millionaires who don't have a clue about what the every day needs of average Americans could be.
...
tl:dr; start filling out those emigration forms.

Yes, because if there's one thing that exemplifies the poor and working class Americans who are so badly served by their government, it's their ability to quit their jobs, pack up their lives, and move their entire families overseas to the good-paying jobs and affordable housing which obviously await them there.
posted by Atom Eyes at 12:38 PM on November 21, 2013 [30 favorites]

I just don't understand how or why democrats have finally grown a spine.

Haven't you ever heard the old saying? Fool me once, shame on you; fool me 5,000 times, shut down the federal government, and bring the country to the brink of default, shame on me.
posted by Rykey at 12:39 PM on November 21, 2013 [20 favorites]

The Founding Fathers never envisioned Congress as having women, or popularly-elected Senators, or a black man at the head of the entire armed forces, or any number of other things that we now take for granted.

But Congress works perfectly well with female members (and voters!) and popularly elected Senators, etc., because the gender or race of politicians is not fundamentally relevant to their ability to do the job, no matter what the Founders may have thought. The Founders did not design Congress to work like a European Parliament, and it doesn't function well (for values of "well" that don't include "block the President's agenda") that way.
posted by Gelatin at 12:42 PM on November 21, 2013 [1 favorite]

The United States is not a democracy. It is a republic...

I have literally said this before: "republic" and "democracy" are not alternatives, they are orthogonal.
posted by psoas at 12:55 PM on November 21, 2013 [11 favorites]

A lesson in game theory:

And that Would be Materially Different from the Old System How Exactly?

Sen. McConnell spokesman: "I'm looking forward to President Rubio stacking the courts."

But especially with regard to judges, the pool from which Republican presidents draw appointees is so extreme already that Democratic filibusters have been only a minor impediment to the GOP's efforts to drag the courts to the right. Appointees regarded as well within the pale by the Establishment are pretty damn far to the right. So what do Democrats risk losing? What's the worst-case scenario? We get Judge Ann Coulter rather than Judge Janice Rogers Brown?

posted by tonycpsu at 1:05 PM on November 21, 2013 [2 favorites]

It's worth noting that Mitch McConnell considers appointing anyone at all to the DC Circuit to be "stacking the court." Not an exaggeration.
posted by Holy Zarquon's Singing Fish at 1:10 PM on November 21, 2013 [13 favorites]

Look at this map to see how your senator voted on changing cloture rules.
posted by ogooglebar at 1:18 PM on November 21, 2013

(Spoiler warning: Your Republican senator voted against. Your Democratic senator voted for, unless his name is Manchin or Pryor.)
posted by Holy Zarquon's Singing Fish at 1:18 PM on November 21, 2013 [2 favorites]

It's worth noting that Mitch McConnell considers appointing anyone at all to the DC Circuit to be "stacking the court."

Any Democrat. Anyone who believes McConnell would have any problem with a Republican president filling the vacancies on the Fifth Circuit is simply not paying attention.
posted by Gelatin at 1:20 PM on November 21, 2013 [2 favorites]

Holy Zarquon's Singing Fish: "(Spoiler warning: Your Republican senator voted against. Your Democratic senator voted for, unless his name is Manchin or Pryor.)"

Or Levin.
posted by Chrysostom at 1:21 PM on November 21, 2013

Your Republican senator voted against.

If the Republicans believe so strongly in the filibuster, they could simply vote to restore the practice if they ever retake the Senate.
posted by Gelatin at 1:23 PM on November 21, 2013 [17 favorites]

If the Republicans believe so strongly in the filibuster, they could simply vote to restore the practice if they ever retake the Senate.

Comedy gold. Now pull the other one.
posted by RedOrGreen at 1:26 PM on November 21, 2013 [1 favorite]

Seriously: McConnell is not unhappy right now - if he's ever majority leader again, the entire filibuster is going to get nuked anyway, and now, he can blame Democrats for it.
posted by RedOrGreen at 1:27 PM on November 21, 2013 [2 favorites]

If he's ever majority leader again, the entire filibuster is going to get nuked anyway, and now, he can blame Democrats for it.

They were gonna anyway. Look at WI, where the republicans took office and the only way the dems could interact was to deny quorum by leaving the state.

The common refrain from Serious People was "Elections have Consequences".

Well, yes. Yes they do.
posted by Pogo_Fuzzybutt at 1:31 PM on November 21, 2013

And sometimes those consequences are temper tantrums.
posted by Holy Zarquon's Singing Fish at 1:32 PM on November 21, 2013 [1 favorite]

Drinky Die: "As far as the judicial fillibusters, Democrats raised it to an unprecedented level under Bush. Y"

tonycpsu: "Here's one of just cloture votes on executive nominees."

Drinky Die: "Judicial filibusters were not new, but using them successfully and simultaneously against a large group of nominees was."

OK, Drinkie Die, I'll give you that. Democrats didn't invent or raise the usage of filibusters, the use of filibusters on executive decisions, nor the use of filibusters on executive appointments, but they increased use of filibusters on executive appointments for judges. Democrats also pioneered the use of filibusters on people named Miguel Estrada, and they also far outstripped the Republicans in their use of filibusters on judicial appointments in the year 2003.

All of which is fairly contrived. The reality is: the use of filibuster to block the POTUS was not very common prior to the Republican usage of it under Clinton. And then, in the next power turnover, yes: the Democrats then used the same technique against a slightly different sort of Executive appointment. Of course, they did not use the general tactic more than the Republicans did before them.

You are technically correct, but not meaningfully so.
posted by IAmBroom at 1:34 PM on November 21, 2013 [8 favorites]

OK, this is good. Had to be done. I was getting night sweats over all the court vacancies - appointments are lifetime, no? We are seeing the effect of far right court appointments now. I have to laugh when the republicans say "court packing." In their typical up-is-down deflection technique, they always accuse the democrats of what they actually do themselves.

The only thing that makes me uneasy is the idea that democrats usually suck at rallying voters in the midterms and I think the radical right will be even more motivated now between this and Obamacare. Democrats get dispirited so easily. It is critical that they hang on to the senate.

There are rumblings about building momentum for another shutdown so maybe a good chance the republicans will shoot themselves in the foot again.
posted by madamjujujive at 1:42 PM on November 21, 2013

It's sad that when I see something like this hit the top of Google News, I find myself scanning down to see what I'm being distracted from.
posted by Mooski at 1:47 PM on November 21, 2013 [2 favorites]

Given the plethora of "nuclear option detonated"-type headlines, I can't help but picture Mitch McConnell, shirtless, pounding the surf and bellowing "You maniacs! You blew it up! Ah, damn you! God damn you all to hell!"
posted by Bromius at 2:02 PM on November 21, 2013 [4 favorites]

It's sad that when I see something like this hit the top of Google News, I find myself scanning down to see what I'm being distracted from.

The right wing fueled, over-hyped problems with the Affordable Care Act's website, aka Obama'a Katrina? Because I'd very much like to be distracted from all that.
posted by RonButNotStupid at 2:07 PM on November 21, 2013 [2 favorites]

recent history has shown that the filibuster is rarely used for noble purposes

Different levels of government, but Wendy Davis used it well this year. There's another conversation to be had about how Republicans imposed all sorts of rules on her filibuster, of course....

I like this rule change, but also think it's good that the filibuster rule change is limited only to certain types of nominees. Blocking up the nomination process just because feels like an undue impediment on the motions of our government. But while there's talk about how the filibuster is antithetical to democracy in this thread ("Yes, but the filibuster is an undemocratic procedure"), I think it serves as a vital check against tyranny of the majority, one last chance for unpopular opinion to command attention.
posted by msbrauer at 2:11 PM on November 21, 2013 [2 favorites]

It's sad that when I see something like this hit the top of Google News, I find myself scanning down to see what I'm being distracted from.

The Utah AG (R) had to resign today amidst allegations of corruption.

Florida Rep Trey Radel (R) didn't resign today after he got busted buying cocaine from an undercover cop. He entered rehab, instead.
posted by Pogo_Fuzzybutt at 2:26 PM on November 21, 2013 [2 favorites]

Wendy Davis of course had to actually stand up* and talk for the whole time her filibuster was in effect. The US senate merely has to say the word filibuster to block nominations/legislation/what have you.

* Wasn't even allowed to lean against a desk for support
posted by TwoWordReview at 2:27 PM on November 21, 2013 [7 favorites]

Florida Rep Trey Radel (R) didn't resign today after he got busted buying cocaine from an undercover cop. He entered rehab, instead.

Trey's been made to go to rehab, I say "Ho ho ho."
posted by Joey Michaels at 2:27 PM on November 21, 2013 [2 favorites]

With or without the filibuster, the Senate operates under unanimous consent, and over-represents small states. These features make it special and counter-majoritarian. Why do we need the filibuster in addition to these and the many other veto points in our system?
posted by tonycpsu at 2:30 PM on November 21, 2013 [3 favorites]

You are technically correct, but not meaningfully so.

Yes, my claim was correct. And the larger point I was illustrating (that this is purely two party shenanigans) was also correct. So....good conversation.
posted by Drinky Die at 2:33 PM on November 21, 2013

Florida Rep Trey Radel (R) didn't resign today after he got busted buying cocaine from an undercover cop. He entered rehab, instead.

Which is still more than you can say for the mayor of Toronto.

Man, you know you've really accomplished something when a politician from fucking Florida seems rational and mature compared to you.
posted by Atom Eyes at 2:36 PM on November 21, 2013 [1 favorite]

Brian Beutler:

"Over the course of several decades, the right has nurtured what essentially amounts to a shadow judiciary, composed of conservative legal scholars who disagree, juridically and ideologically, with the post-New Deal consensus. Republican presidents draw upon this class of activists to fill judicial vacancies, creating a modern antipode to liberal judicial activists of previous decades.

As that movement has matured, and in part because that movement has matured, politics has shrunk the ideological sphere from which Democratic presidents have been able to cull liberal jurists. Outspoken progressives, on the periphery of the sphere, have been marginalized. The liberal legal establishment is so scrutinized and subject to so many litmus tests that it has self-selected for timid or self-censoring thinkers, at least in part because it was assumed “liberal activists” would be blocked, and thus never nominated.

That limiting force is gone now. And the hope is its absence draws a new generation of legal minds out of the shadows and onto the bench sooner than later."
posted by T.D. Strange at 2:48 PM on November 21, 2013 [8 favorites]

one last chance for unpopular opinion to command attention.

It's done a bit more than that, no?
posted by Artw at 2:49 PM on November 21, 2013

Drinky Die: " Yes, my claim was correct. And the larger point I was illustrating (that this is purely two party shenanigans) was also correct. So....good conversation."

"Two party shenanigans" is just such a coarse, simplistic way to describe the situation, and one that plays into the idea that both parties are equally at fault. They're just not.
posted by tonycpsu at 2:53 PM on November 21, 2013 [12 favorites]

I think maybe that was tongue in cheek, but I'm not sure, so: Why would Harry Reid want to distract us from a Republican resigning in shame and another Republican refusing to resign in shame?
posted by Flunkie at 2:54 PM on November 21, 2013

Yeah, it was tongue in cheek. Mostly.

I was just throwing it out there.
posted by Pogo_Fuzzybutt at 3:04 PM on November 21, 2013

"Two party shenanigans" is just such a coarse, simplistic way to describe the situation, and one that plays into the idea that both parties are equally at fault. They're just not.

What it means, to me, is that the blame here goes mostly to the two party system itself. That isn't the same as blaming both parties equally. It was an escalating back and forth war in which this was the inevitable result of two groups acting to preserve their own power at the present moment. Republicans forced the issue early by obstructing past Democratic tolerance and refusing to deal but this could have happened back in 2005 because the obstruction was already beyond what is appropriate.

If you honestly in your heart believe Democrats would have voted the same as they did today if this vote was offered while they were in the minority...

That's what I mean. It's the essence of two party government that some positions just switch back and forth like this based on political leverage rather than policy.
posted by Drinky Die at 3:09 PM on November 21, 2013 [1 favorite]

I don't think there's any political system, two-party or otherwise, in which groups of people habitually undercut their own sources of power.
posted by burden at 3:18 PM on November 21, 2013 [3 favorites]

I don't disagree, the fun thing in the two party system is seeing that illustrated in situations like this when the positions and rhetoric flip.
posted by Drinky Die at 3:21 PM on November 21, 2013

If you honestly in your heart believe Democrats would have voted the same as they did today if this vote was offered while they were in the minority...

Tom Harkin actually did this, but even leaving that anomaly aside, the Democrats *clearly* know their Senate majority is in danger. The 2014 map looks brutal for Democrats -- lots of purple and red seats to defend, untimely retirements, not many places to score pickups, and it's not like the stalling of nominees hasn't been apparent for several years now. If this were just an opportunistic power grab, they'd have nuked the filibuster a long time ago when they could have gotten some mileage out of it. Instead, they've done this half-measure as a last resort, and at a time when their majority in the Senate is in more peril than it's been since they took over that chamber. (There were times when the majority was thinner, but at those times, they had Obama's coattails, or the map of pickups was more in their favor.)
posted by tonycpsu at 3:23 PM on November 21, 2013 [2 favorites]

If this were just an opportunistic power grab,

I must not be communicating myself well on this if you believe this to be what I am suggesting. It is probably time to drop it because I don't think I can clarify my meaning any better.
posted by Drinky Die at 3:25 PM on November 21, 2013

I think it's not wrong to practice politics by the rules that exist at any given time. It's not wrong for minority parties to try to preserve and use power that they have access to, and it's not wrong for anti-corporate candidates to take corporate money if that's legal and it's what they need to do to win.

But there are better sets of rules and worse sets of rules. We should applaud when a worse rule is replaced by a better one. That's what happened today.
posted by burden at 3:39 PM on November 21, 2013 [4 favorites]

If only there were examples of countries that have unfettered majority power, then we could see that such a system would inevitably result in radioactive cannibals scavenging for tins of soup.

Thankfully, THE FOUNDERS™ prevented such a disaster with their immortal wisdom.
posted by benzenedream at 4:03 PM on November 21, 2013 [3 favorites]

Following the use of the nuclear option, a bedraggled Mitch McConnell, clad only in rags, stumbles from the senate chambers, making it to the national statuary hall. As his strength fades, he falls to his knees before the statue of John C. Calhoun. Beating his fists to bloody stumps, he cries, " You blew it up! Ah, damn you! God damn you all to hell!". Restored by an infusion of unlimited corporate cash, he stumbles off, leaving two rapidly drying reddish-brown stains on the polished, black and white marble floor.
posted by bzbb at 4:41 PM on November 21, 2013 [2 favorites]

But while there's talk about how the filibuster is antithetical to democracy in this thread ... I think it serves as a vital check against tyranny of the majority, one last chance for unpopular opinion to command attention.

Wait, so in order to pass any legislation:

1. it requires a majority of the House
2. it requires a majority of the Senate
3. it requires the approval of the President
4. it requires the approval of the Supreme Court

And to all of this you think it should also require the approval of a minority consisting of the Senate opposition party?

The filibuster biases government to conservatism since obstruction is inherently anti-progress. Nuke it all.
posted by JackFlash at 5:00 PM on November 21, 2013 [15 favorites]

Changing these rules is just more political theater.

This sounds like the familiar old refrain of "they're all the same". Here's an article about how judicial appointments make a big difference. Conservatives already have the Supreme Court and the DC Circuit and judicial appointments have a long term, lasting impact. Changing filibuster rules because the GOP continues to block nearly every single one of Obama's nominees is extremely important if we ever expect to get more progressive judges in the courts so shit like this doesn't keep happening.
posted by triggerfinger at 5:36 PM on November 21, 2013 [4 favorites]

"Reid invoked the swath of GOP filibusters of cabinet, sub-cabinet and judicial nominees, from Chuck Hagel and Mel Watt to executive positions and Obama's three nominees to the powerful D.C. Circuit court -- Patricia Millett, Nina Pillard and Robert Wilkins."

A little more on these candidates: Senate Republicans Block Vote On Key Judicial Candidate, Daring Dems To Go Nuclear

Senate Republicans Filibuster Judicial Nominee Who Dared To Talk About Women’s Rights

Senate Republicans Obstruct Third Judicial Nominee, Triggering Filibuster War
posted by homunculus at 6:24 PM on November 21, 2013 [4 favorites]

More comedy from DC. Just another day...
posted by a3matrix at 9:36 PM on November 21, 2013

Where's the video of this actually happening? All I can find is commentary and commentary on commentary and the inevitable republican spin about the total destruction of democracy.
posted by quillbreaker at 10:12 PM on November 21, 2013 [1 favorite]

I was reading commentary on a political message board lastt night (can't recall where so no link) that asked whatever possessed the republicans to go this far ... if they had accepted 2 or even all 3 recent judges, they could have perhaps contained the damage because they have been effectively gumming up the works for years ... but now they have lost all bargaining power and have to sit idly by through 90+ judicial appointments. Obama damn well ought to put the pedal to the metal - there are about 50 in the queue. Expect a lot more blathering about "court packing" as this happens but that line of thought will likely only have traction in the paranoid fema-camps-being-built crowd.

Oh, yeah, and the blathering media talking heads.
posted by madamjujujive at 4:42 AM on November 22, 2013

“Mr. President [of the Senate] the right [sic] to extend the debate is never more important than when one party controls the Congress and the White House. In these cases, the filibuster serves as a check on power and preserves our limited government…But no, we are not going to follow the Senate rules. No. Because of the arrogance of power of this Republican administration.”
--Harry Reid, 2005

“The nuclear option, if successful, will turn the Senate into a body that could have its rules broken at any time by a majority of Senators unhappy with any position taken by the minority. It begins with judicial nominations. Next, will be executive appointments. And then, legislation.”
--Dianne Feinstein, 2005

This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power-grab.
--Joe Biden

The nuclear option “I think, would change the character of the Senate forever… Uhh, and, what I worry about would be you essentially have still two chambers — the House and the Senate — but you have simply majoritarian absolute power on either side, and that’s just not what the founders intended.”
--Barack Obama, 2005

“We are on the precipice of a crisis, a Constitutional crisis. The checks and balances, which have been at the core of this Republic [finally, a Democrat who understands basic political philosophy - ed.], are about to be evaporated, by the nuclear option. The checks and balances say that if you get 51% of the vote, you don’t get your way 100% of the time. It is amazing, almost a temper tantrum…”
--Chuckie Schumer, 2005
posted by a3matrix at 6:32 AM on November 22, 2013 [3 favorites]

The only decent argument against the rule change is that it should have been done at the beginning of the session rather than through the "nuclear option." But it's pretty hard for Republicans to invoke norms of behavior and bipartisan comity at this late date. Under McConnell's leadership the Republican minority has thrown away historical norms about the use of the filibuster. They can't have it both ways.
posted by tonycpsu at 7:11 AM on November 22, 2013

Tony, that the write of the piece in your link views this as a triumph makes me sad. This is a loss for the US as a whole. Some might construe it as a victory, but only for a party. This is just another example of how wrong things are going in DC. One day this rule change is going to be used by the opposite party than the rule changers.
More partisan ridiculousness from DC is all that it is. We are screwed until we break this 2 party disaster we have created.
posted by a3matrix at 7:21 AM on November 22, 2013

a3matrix: "One day this rule change is going to be used by the opposite party than the rule changers. "

Good! The Republicans should be able to govern when they're in the majority, too.

See how easy that was?
posted by tonycpsu at 7:22 AM on November 22, 2013 [3 favorites]

Creating gridlock for the sake of gridlock is not a two-party problem and never has been.
posted by one more dead town's last parade at 7:27 AM on November 22, 2013 [5 favorites]

a3matrix: It's not a complete removal of the filibuster, and all of that was before the filibuster was used to essentially stop government from working almost entirely. But anyway, it goes both ways:

1. Mitch McConnell (KY)

“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote” (5/19/05).

“Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate” (5/22/05).

2. John Cornyn (TX)

“[F]ilibusters of judicial nominations are uniquely offensive to our nation’s constitutional design” (6/4/03).

“[M]embers of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future” (6/5/03).

3. Lamar Alexander (TN)

“If there is a Democratic President and I am in this body, and if he nominates a judge, I will never vote to deny a vote on that judge” (3/11/03).

“I would never filibuster any President's judicial nominee. Period” (6/9/05).

4. John McCain (AZ)

“I’ve always believed that [judicial nominees deserve yes-or-no votes]. There has to be extraordinary circumstances to vote against them. Elections have consequences” (6/18/13).

5. Chuck Grassley (IA)

“It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60” (2/11/03).

“[W]e can’t find anywhere in the Constitution that says a supermajority is needed for confirmation” (5/8/05).

6. Saxby Chambliss (GA)

“I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).

7. Lindsey Graham (SC)

“I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).

8. Johnny Isakson (GA)

“I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).

9. James Inhofe (OK)

“This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution” (3/11/03).

10. Mike Crapo (ID)

“[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).

11 . Richard Shelby (AL)

“Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).

12. Orrin Hatch (UT)*

Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).

*Hatch claims he still opposes filibusters of judicial nominees and often votes “present” instead of “no” on cloture votes. But as Drew noted: “Because ending a filibuster requires 60 ‘yes’ votes, voting ‘present’ is identical to voting ‘no.’ Hatch’s decision to vote ‘present’ is an affirmative decision to continue the filibuster.”

posted by zombieflanders at 7:28 AM on November 22, 2013 [16 favorites]

If Democrats were nominating members of Code Pink for these court vacancies, I could maybe understand where the GOP is coming from, but one of the three nominations that forced this action was Patricia Millett, who worked in the Solicitor General's office during the Bush administration. If she were some kind of far-left lunatic, she wouldn't have held that post.

Meanwhile, the deal that ended the Republicans' nuclear option threat under Bush confirmed some of the most reactionary judges our country's ever seen.

This, again, is not a story of "both sides do it." The only shocking thing is that Democrats took a step toward leveling the playing field. They'll still have to contend with red-state conservative Democrats, including the three that voted against the nuclear option, so there's zero chance they'll get anyone through that's as liberal as the Bush nominees were conservative. But at least they can get some warm bodies into the 90+ court vacancies and god knows how many empty chairs in the executive branch.
posted by tonycpsu at 7:39 AM on November 22, 2013 [2 favorites]

My fear is that is but the first domino to fall Zombie. Given the R abuse of fillibuster under the likes of Cruz, what then becomes the new norm. Each time you raise the bar, or lower it, it just means a new high or low to aspire to.
In the end the people that always lose will be us.
Between our two posts of noted quotes the hypocrisy reveals that it is all about political expedience to further the party(s) agenda.
posted by a3matrix at 7:42 AM on November 22, 2013

The thing is, the "bar' we're talking about here is nowhere to be found in the Constitution. The rules of the Senate are just norms, and the GOP showed no respect for the norms of allowing the executive branch to fill empty seats in the executive and judicial branches. Why would the Democrats be bound to show respect for the filibuster, which is an inherently conservative instrument that favors the party that doesn't want government to do anything?
posted by tonycpsu at 7:48 AM on November 22, 2013 [3 favorites]

My fear is that is but the first domino to fall Zombie.

The legislative filibuster will fall as soon as a party controls both houses in Congress and the Presidency. Could be as soon as 2016, but I doubt it. It does seem inevitable though. I agree with others here that this isn't a bad thing though, it puts the power in the hands of the voters where it belongs. I trust them much more than either party even though we can be massive idiots at times. Generally our idiocy is in not knowing what is right rather than sacrificing it for the maintenance of party or personal power.
posted by Drinky Die at 7:51 AM on November 22, 2013 [1 favorite]

So is this where the Republicans, completely failing to notice the recently-descended pair of cajones on the Democrats, start placing legislative holds left and right? And thereby practically asking for holds to go on the chopping block as well?

Seriously, I'm beginning to wonder whether the Rs, realizing they're not going to win on their policy positions, are not trying to provoke the Ds into big-headline decisive moves (not budging on the shutdown, pulling the filibuster trigger) in order to portray them as RUTHLESS DICTATORS WHO HATE THE CONSTITUTION. I realize that it's the Rs, of course, who have made rule-bending and flyswatting with sledgehammers their SOP throughout the past few decades, but they have a media echo chamber and a reliable population of mouthbreathers that the Ds just don't have, so it would seem their OMGTYRANTS line would have some traction at the ballot box that their actual policies don't.
posted by Rykey at 8:46 AM on November 22, 2013

I found these statistics interesting:

So far, 79 Obama nominees have faced at least one vote to end debate, known as cloture, which is usually held to end a filibuster. That is more than double the 38 picks of President George W. Bush in the eight years of his presidency.

Measured another way, the trend on confirmations is less clear.

A May report from the Congressional Research Service said Mr. Obama won Senate approval for 30 of his 42 federal court nominations, compared with Mr. Bush's record of 35 approvals from 52 nominations.

posted by BobbyVan at 8:53 AM on November 22, 2013

Expanding on zombieflanders' post, an amusing Vine posted by Harry Reid yesterday.
posted by Asparagus at 9:04 AM on November 22, 2013 [3 favorites]

A May report from the Congressional Research Service said Mr. Obama won Senate approval for 30 of his 42 federal court nominations, compared with Mr. Bush's record of 35 approvals from 52 nominations.

That's circuit courts, not all federal courts. Somebody at WSJ is probably going to have to issue a correction.
posted by zombieflanders at 9:11 AM on November 22, 2013

I'm sure the WSJ "regrets" the "error".
posted by tonycpsu at 9:22 AM on November 22, 2013

Remember: Bork Wasn’t Filibustered:

Or here are some even more terrifying possibilities: Judge Owen! Judge Rogers Brown! Justice [Alito]! Justice Thomas! Without the filubuster, who knows, any of those might have happened!
...
But this brings us to another point. No conservative nominee to the Supreme Court has ever been successfully filibustered, including Alito and Thomas (the latter in a Democratic-controlled Senate!)

posted by tonycpsu at 9:26 AM on November 22, 2013 [6 favorites]

BobbyVan: I found these statistics interesting ...

That's known as nut-picking statistics.

In the entire history of the United States, 168 executive and judicial appointments have been filibustered. 82 of those have occurred since Obama took office. That's 49% in the last 5 years.
posted by JackFlash at 9:35 AM on November 22, 2013 [11 favorites]

Charles Pierce: The Nuclear Fallout
posted by homunculus at 11:56 AM on November 22, 2013 [1 favorite]

A May report from the Congressional Research Service said Mr. Obama won Senate approval for 30 of his 42 federal court nominations, compared with Mr. Bush's record of 35 approvals from 52 nominations.

Some — not all, but some — Bush nominees were pretty far along the spectrum of right-wing extremism. This "nuclear option" still leaves open the possibility of Republicans filibustering Obama's Supreme Court nominations, while Bush managed to get the extremist Alito through thanks to the Gang of 14 "compromise". People should be skeptical of new statistics from the WSJ and other sources of Murdoch's talking-points until they look at an apples-to-apples comparison of not only who got rejected, but who still managed to get through, because some Democrats chose to cave into demands by Bush Republicans.
posted by Blazecock Pileon at 12:22 PM on November 22, 2013 [4 favorites]

Blazecock Pileon: "Some - not all, but some - Bush nominees were pretty far along the spectrum of right-wing extremism."

Meanwhile, for all the sturm und drang around the use of the nuclear option, here's an example of what liberals have actually "won":

"I find it troubling, because Ms. Millett and her firm Akin Gump went well beyond what I consider the bounds of decency and morality in the very aggressive anti-union campaign they really designed and helped Starbucks carry out," Daniel Gross, a founding member of the Starbucks Workers Union, told Salon. "The campaign that Ms. Millett and her firm architected and really co-led, and continues to co-lead with Starbucks, involved all of the scorched earth tactics which are starting to come to light more and more." The White House, the AFL-CIO and Starbucks did not provide comment on Millett's Starbucks work in response to Thursday inquiries. Akin Gump declined to comment.

After 11 years as an assistant to the solicitor general at the federal Department of Justice, Millett joined the top-flight firm Akin Gump, whose website describes its "Labor Relations Strategic Advice and Counseling" practice as including "union avoidance" and "the defense of unfair labor practice charges ..." Millett's clients there included the coffee giant Starbucks, which faced a union campaign by the Starbucks Workers Union, an affiliate of the Industrial Workers of the World (IWW, also known as the Wobblies).

But I'm sure other than that, she's a total leftist!
posted by tonycpsu at 12:35 PM on November 22, 2013 [2 favorites]

In the entire history of the United States, 168 executive and judicial appointments have been filibustered. 82 of those have occurred since Obama took office. That's 49% in the last 5 years.

Needs to get up to 51% before it's a problem.
posted by Etrigan at 12:41 PM on November 22, 2013 [1 favorite]

...and even then, it's not really really a problem until it's 60%.
posted by Riki tiki at 4:44 PM on November 22, 2013

Yes, because if there's one thing that exemplifies the poor and working class Americans who are so badly served by their government, it's their ability to quit their jobs, pack up their lives, and move their entire families overseas to the good-paying jobs and affordable housing which obviously await them there.

Who said it had to be overseas? There were people in Central America who were poorer than I was when I first went down, and they're doing just fine.

There's an interesting history of professorish people decrying the helplessness of the working classes, and if you're still wondering why there is some resentment in those classes for the left, it's smug dismissal of their potential just because they happen to be poor. Sometimes they realize that it isn't worth a damn and they leave, whether it be a small town or an entire country. It is helpful to remember that virtually every one of us is descended from immigrants, many of whom scraped together what money they could to cross an ocean. It's part of our culture to seek a better life for ourselves. We're the most mobile society on the planet, moving ourselves more than any other nation, and perhaps that's part of our problem along with our streak of shortsighted individualism. But anyway.

You may not think America is a worse choice than some third world and BRIC countries. Many working class people are starting to disagree with you, and if you think there's something stopping people from abandoning countries that don't offer a future to the next generation, you just aren't paying attention.

Honestly... what have we got to lose? I can go to either border and end up in a country with a lower incarceration rate, lower inequality, and a superior health care system. And hey, maybe they won't squander all of my taxes by invading countries who don't pose any threat to my interests and end up in 5 trillion dollar quagmires that suddenly the aristocrats don't want to pay for. Meanwhile, most of us are living paycheck to paycheck and they're trying to rob the rest of government from us by refusing to pay their share of taxes.

I have no voice in my government. I am taxed, but my taxes are squandered and 80% of the country feels that they are not represented well. Our government is owned by corrupted aristocrats, and they're taxing me to death so they can continue to operate unjust wars and a corrupted financial system. Does this situation sound familiar? The only thing missing from the last administration was the title King before the name George.

Being poor is just another motivator.
posted by deanklear at 8:58 AM on November 23, 2013 [1 favorite]

Sorry, I hit the post button too early. Ignoring some redundancy, you get the point.

Just one more point: since Obama has taken office, things haven't gotten any better. I know that it's not his fault, but perhaps the only thing more concerning than the general failure of our government is that someone who seems genuinely interested in getting things done is unable to make anything but small dents in the system. Maybe this change in filibuster rules will ease some of that, but who knows.
posted by deanklear at 9:07 AM on November 23, 2013 [2 favorites]

Some thoughts on the implications of the (surely inevitable) elimination on the filibuster for legislation.
posted by Chrysostom at 10:37 AM on November 23, 2013 [1 favorite]

Yes, because if there's one thing that exemplifies the poor and working class Americans who are so badly served by their government, it's their ability to quit their jobs, pack up their lives, and move their entire families overseas to the good-paying jobs and affordable housing which obviously await them there.

deanklear: Who said it had to be overseas? There were people in Central America who were poorer than I was when I first went down, and they're doing just fine.

I don't think that word "overseas" is the important part. It's much, much, much harder for the poor to move. They have no safety net. No reserves. Hell, even renting a truck to pack up their most essential things can be more than they can achieve when desperate for a job. So it becomes a choice of "move somewhere with no guarantee of a job when you get there, abandoning EVERYTHING but photos, some clothes, and a few toys", or staying where they are in the hopes that luck will change.

It takes a lot of pressure for the former to look like a good idea to anyone.
posted by IAmBroom at 11:59 AM on November 24, 2013

Four Reasons the Nuclear Option Was a Liberal Win

Here are some of the major arguments being made against the deal from a Democratic perspective—and why they're wrong.

1. Democrats Will Be Sorry, Because This Means Republicans Will Keep Doing What They've Been Doing Since the Reagan Administration

As I discussed in my initial reaction to the historic action of Reid and the Democratic caucus, the debate over whether to end most judicial filibusters has involved numerous threats by Republicans to keep appointing the same kinds of judges that conservative presidents have been nominating for decades... As Jon Chait observes, "[t]he threat to nominate more Scalias is about as frightening as Iran threatening to cut off its donations to the Jewish National Fund."
...
Since Democratic presidents have been pre-emptively moderating their nominees to avoid filibusters and Republican presidents haven't, by definition this means that the nuclear option can't make things worse for Democrats and is likely to make them better.

2. Pretending that the Filibuster Is the Only Political Constraint on the President

...
But is it the filibuster preventing the confirmation of a Supreme Court justice who would replace the Constitution with Atlas Shrugged? Of course not. As happened to Robert Bork, Barnett's history of extremist and immensely unpopular opinions would ensure defeat by any Democratic controlled-Senate. And even if Republicans controlled the Senate, would a Republican president nominate someone explicitly committed to the premise that Social Security and Medicare are unconstitutional, although this would be a political disaster and a Supreme Court that so ruled would finish the Republicans as a national party? It's very unlikely. It's simply not the case that without the filibuster a president will have unlimited discretion over Supreme Court nominees.

3. But Isn't the House of Representatives Terrible?
...
If you think the House is dysfunctional now, imagine a House in which radical House Republicans had a veto over legislation supported by a majority of the legislative body. The Senate would have easily raised the debt ceiling in a majority vote, but if the House had the Senate's bad rules the world economy would have blown up.

4. Liberal Sentimentality about the Filibuster
...
The depiction of the filibuster in Mr. Smith Goes To Washington is a nearly precise inversion of how the filibuster actually works. Far from protecting the interests of powerless minorities, the filibuster in practice is far more likely to allow powerful, overrepresented minorities like segregationist and business interests to thwart legislation intended to protect oppressed minorities. The Republican blockade of Obama's judicial and executive nominees is very much consistent with this tradition, which is why the use of the nuclear option was a clear victory for progressives.

posted by tonycpsu at 8:57 AM on November 25, 2013 [5 favorites]

The interesting thing is that they didn't eliminate the filibuster, just switched from 60 votes to a simple majority required for cloture. If the Senate is reasonably close between the parties, the minority can still exercise their influence if their concerns are reasonable enough that they can persuade a few defectors. If they can't, or they are so far in the minority that they would need to convince an unrealistic number of members of the other party...they don't really deserve to block something.
posted by Drinky Die at 2:30 PM on November 25, 2013 [2 favorites]

Twenty Years Ago, Krauthammer Would Have Accuse Senate Democrats of "Wilding"
posted by tonycpsu at 9:31 AM on November 29, 2013