Senate Filibuster Showdown
Charles Babington
Washington Post Staff Writer
Wednesday, May 18, 2005; 12:00 PM
On Monday Senate Minority Leader Harry Reid (D-Nev.) and Majority Leader Bill Frist (R-Tenn.), unable to reach a satisfactory agreement, broke off talks intended to avoid a full showdown over filibusters in the Senate. Now it appears headed for the Senate floor unless bipartisanship prevails among other key Senators. What's at stake for Bush and his judicial nominees? Who will the political fallout affect most?
Post Congressional reporter Charles Babington was online to discuss the latest in the Senate's filibuster showdown.
A transcript follows.
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Seattle, Wash.: What retaliatory moves are being seriously considered by the Democrats, assuming that the Republicans go through with the rules change? Will we see shutdown of the government or similar large-scale reaction?
Charles Babington: In recent weeks, the Democrats have stopped talking of retaliation or a Senate shutdown. Instead they say they will try to push their favorite issues -- minimum wage increase, e.g. -- to the forefront. Given the Republicans' control of the floor, it's unclear how successful they might be.
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Arlington, Va.: Do you agree that this whole battle really comes down to Janice Rogers Brown? The Democrats know that Justice O'Connor is likely to step down sometime during Bush's term, and that Janice Brown is the favorite (particularly after a year of 'grooming' on the D.C. Circuit) to get appointed to that 'centrist' seat. They want to do everything they can to block her from a traditional stepping stone (D.C. Circuit) to the Supreme Court.
Charles Babington: I think the issue is broader than Janice Rogers Brown. Democrats appear equally opposed to William Pryor, Wm. Myers and Priscilla Owen. I think the biggest issue is the Supreme Court, where one or two vacancies seem likely this year. Democrats want to preserve the right to filibuster if President Bush nominates someone they find highly objectionable. Republican leaders would like to have the filibuster threat eliminated before the vacancy occurs.
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Washington, D.C.: I am a novice to Senate rules and am still trying to figure out the mechanical steps of defeating the filibuster rule. Two questions: (1) Can you walk us through an expected chain of events; and (2) why can't Democrats filibuster a vote to end the filibuster?
Charles Babington: Good questions. It probably would go like this: At some point in the debate over a judge, Majority Leader Frist (or his designee) would seek a ruling from the chair that further debate is pointless and therefore out of order. The presiding officer (a Republican) would rule in Frist's favor. Democrats would appeal the chair's ruling. A Republican would immediately move to "table" (or kill) the Democrats' appeal. A tabling motion is not debatable. That's the key. Therefore a simple majority vote -- with VP Cheney breaking a 50-50 tie if needed-- would uphold the chair's ruling. From that point on, a new "precedent" would be in place effectively banning filibusters of appellate court nominees.
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Ashland, Mo.: Why do the Democrats want to provoke a filibuster showdown on the Court of Appeals judges? Wouldn't it be better to vote on them without jeopardizing the filibuster rule for a possible Supreme Court appointment, particularly if you may lose the rule change vote? Can't 5 Democrats figure that out? And can't all the Republicans figure that out, and call the Democrats bluff by filing for cloture and getting the 60 votes?
Charles Babington: Democrats say they filibustered 10 of President Bush's appellate court nominees because they genuinely felt they were unfit for lifetime appointments to the court. If they waited to filibuster only a Supreme Court nominee, what would they gain? If Frist has the votes for the nuclear option (i.e. banning judicial filibusters), then he could use them then, and the Democrats would end up with appellate court AND Supreme Court justices they strongly dislike. As for Republicans getting 60 votes to shut off the filibusters, that's the big problem: They have 55 seats, and they repeatedly have been unable to muster 60 votes for cloture. That's why we are where we are.
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Cherry Hill, N.J: if Frist succeeds in changing the rules for judicial nominees, what prevents him from changing the rules regarding filibusters of legislation? In fact, why wouldn't he do that, since he clearly would be able to?
Charles Babington: Frist has repeatedly promised not to extend the no-filibuster rule to legislation. A number of Democrats have expressed concerns that Frist's successors might not make the same promise.
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Catasauqua, Pa.: Lately, the Democrats and some media outlets have been stating that Republicans want to "change the rules." But I thought that it takes a 2/3 vote to change a Senate rule. Isn't it more precise to say that Republicans want to establish a new precedent (i.e., that filibusters for judicial nominees are out of order), which only requires a majority vote?
Charles Babington: Yes. Senate procedures are governed by "rules" and by "precedents." A change to the rules requires a 2/3 majority, and everyone agrees that would fail in this case. A "precedent" can be set by a simple-majority vote. Its impact would as great as a rule change: Filibusters of appellate court nominees would be banned.
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Williamsburg, Va.: World it be possible for the Democrats to use the "anonymous hold practice, a la Jesse Helms, to thwart some of the nominees?
Charles Babington: No. In recent years, senators have cracked down on the so-called "blue slip" process of holding up nominees. As the minority party, Democrats would not be allowed to keep a nominee from reaching a committee vote.
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Albany, N.Y.: Are we going to see the Senate's rules on filibusters changed every time it suits the majority party now? For example, Democrats take over the Senate in 2006, reinstate the filibuster, then a Democrat Presidents wins in 2008, Democrats remove the filibuster
Charles Babington: Who knows? However, if Democrats regained the majority, they'd have no need for the filibuster. They could reject nominees on simple-majority votes. The filibuster protects the minority, not the majority.
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New York, N.Y.: Why now, if the filibuster rule change seems relatively easy to accomplish how come its lasted so long. Did nobody know how to kill it before the academic paper came out?
Charles Babington: It has been rarely used against judicial nominees, so it wasn't a big issue. Republicans (with several Democrats' help) successfully filibustered Abe Fortas's nomination to be Chief Justice in 1968, but that was treated as an isolated case. Since then, filibusters were not used to defeat judicial nominees until President Bush's first term. In all, Democrats blocked 10 nominees with filibusters. Republicans said that's an abuse of the filibuster right.
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Greenwich, Conn.: Mr. Babington,
Could you tell me how the Republicans get away with stating that "every judicial candidate deserves a simple up or down vote" when they blocked more than 60 judicial nominees under the Clinton administration? How do they get away with saying that filibusters of judicial nominees are unprecedented in over two hundred years of our history, when they clearly filibustered Abe Fortas' nomination in 1968? How in a democracy like America's do they get away with these lies?
Charles Babington: Republicans make a couple of distinctions. They say nominees deserve an up-or-down vote ONCE THEY REACH THE SENATE FLOOR. They have not set that standard in the Judiciary Committee where, as you note, more than 60 of Clinton's nominees were bottled up, and where GOP nominees also have been thwarted in the past. As for Fortas, Frist says the case is different because it's not clear that Fortas had a majority of senators backing him. In other words, he might have lost an up-or-down vote, whereas there's little doubt that the currently filibustered nominees could get 51 votes. Democrats respond: If Fortas' opponents could have won a simple-majority vote, why did they go to the trouble (and criticisms) a filibuster entails? They say a filibuster is a filibuster.
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Onalaska, Wis.: Is there any possibility any Senator will change his mind or vote on the candidates. I am wondering if it would do any good to contact Senator Feingold or Kohl to express my wishes.
Charles Babington: I have no idea. I guess a vote is never cast until it is cast.
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Akron, Ohio: Can the Democrats ask for a ruling from the Senate's parliamentarian during the floor debate regarding the actions of the GOP?
Charles Babington: Yes. Republicans say the parliamentarian's views are advisory, not binding.
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Los Angeles, Calif.: Thanks for taking questions. Assuming the "nuclear option" is exercised, and filibustering is banned, does this mean it can never be reversed, that filibustering would never again be a possibility?
Charles Babington: No, a new precedent could be established (even if it's exactly the same as an old precedent).
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Arlington, Va.: You say that "if Democrats regained the majority, they'd have no need for the filibuster. They could reject nominees on simple-majority votes." but that's not what we learned in the 90s. Many of Clinton's nominees would have passed with a majority but that didn't suit the Republican leadership of the time, who used other devices (including the filibuster) to prevent those up or down votes. Who is to say that wouldn't happen again if Democrats were in the majority?
Charles Babington: Unless I'm badly mistaken, Republican senators launched filibusters against Clinton nominees only when they were in the minority (i.e. the first two years of Clinton's presidency, and the 19 months after Jim Jeffords left the GOP). When they were in the majority, they didn't need the filibuster.. Republicans note that the nominees they filibustered were eventually confirmed and placed on the court.
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Boston, Mass.: I read Master of the Senate, a book about LBJ's powerful hold on the Senate during the 1950's and bold as he was, he never even considered tampering with the filibuster. How can the GOP be so audacious?
Charles Babington: It's a terrific book, isn't it? The Republicans say they are being fair, not audacious.