Tag: Filibuster

History Did Not Start in 2009

Over the weekend, a number began circulating in liberal circles in an attempt to justify the Democrats’ effort to filibuster Neil Gorsuch. The number was that there have been 148 cloture votes on judicial nominees in our entire history … and 79 of them took place under Obama.

The number instantly triggered my BS alarm and rightly so. As Ed Whelan details, this number is garbage. It turns out that Harry Reid routinely filed cloture motions on bills and nominations even when there was no filibuster or no threat of one (most likely to try to evade debate on Obama’s nominations and proposals).

By my quick count, the cloture motions that Reid filed on some 39 of the 79 nominees were withdrawn or mooted, and the motions on 28 others were successful, many with strong Republican support. (Only twelve of the 28 received more than 30 negative votes, and eleven of them had fewer than twenty negative votes.) All of those nominees were confirmed.

Of the eleven cloture motions that were defeated, three of the nominations were confirmed after some delay, and four others were confirmed after Democrats abolished the filibuster.

In sum, even under a very liberal account of what “blocked by filibusters” might plausibly mean, it is difficult to see how anyone could contend that more than eleven of Obama’s nominees were “blocked by filibusters.”

By contrast, 14 of Bush’s nominees were blocked by filibusters. Only 16 times has the Senate rejected cloture on a judicial nomination. Ten of those were in the 108th Congress when the Democrats were basically filibustering every Bush nomination they could, hoping he would be unelected in 2004. The only reason no SCOTUS nominee was blocked was because Bush didn’t nominate any justices in his first term (a time when Schumer was threatening to filibuster SCOTUS nominees for all four years). The Democrats tried to filibuster Roberts but failed. In the meantime, the Republicans brought up and voted on two of Obama’s SCOTUS nominees.

(The CRS report is here and it really blows away this talking point. Gorsuch’s nomination was only the fifth time cloture was even attempted with a SCOTUS nominee. All five were Republicans nominees. Only seven cabinet nominations have needed cloture votes — five were under Bush. Reid’s office has been citing only two pages of the report, conveniently eliding the other damning parts. Politifact, in proclaiming the “79 of 148″ number true, couldn’t be bothered to look at the full report and just took Reid’s excerpt as gospel. I include that last tidbit just in case you were wondering if Politifact is still full of it.)

Any filibuster of a nominee is wrong, in my opinion. I wasn’t happy when the Republicans did it and I didn’t agree with their sitting on Garland’s nomination. But this business did not start under Obama. It’s been building for years, really all the way back to Bork.

But it goes way beyond that. For eight years, all we heard that was that Republicans were “obstructing” Obama (obstructing, in this sense, meaning a co-equal branch of government not enacting his agenda because they thought it was a bad idea). But that followed on eight years of … Democrats “obstructing” everything Bush wanted to do. If anything, it was worse under Bush. Democrats not only opposed things Bush wanted that they opposed (privatizing Social Security, cutting spending, etc.) but even things they wanted like Medicare’s drug program, Medicaid expansion and massive spending hikes.

And, of course, now that Trump is in power, the Democrats are rediscovering how much fun opposition is. The very same people who cried “obstruction!” for eight years are now crying “obstruction, yes!” as Republicans try to repeal Obamacare, put judges on the bench, enact regulatory reform and … well, anything else. Hell, if Trump proposed single payer healthcare, I am convinced that Democrats would oppose just for the bloody hell of it.

Look, I’m in favor of obstruction. I like it that our government is set up with all kinds of checks and balances that are designed to slow, if not completely stop, bad ideas. But I’ve always been in favor of it. I won’t bash Democrats an “obstructionist” for opposing laws or nominations if they think they are bad ideas. But I will bash them when they claim some kind of factually-challenged moral superiority in doing so.

Yes, the Republicans have been engaging in some shady things. But that’s politics. They only time the Democrats don’t use the same tactics is when they literally can’t. They’ll scream the heavens down about gerrymandering; then they’ll gerrymander the hell out of Maryland. They’ll shout about voter disenfranchisement; but the only reason they want to enfranchise felons is because felons vote Democrat. They scream about Republican special interests; while bankrupting their states in obedience to SEIU. They scream about Garland; and they forget about Estrada.

The Great Liberal Myth is their belief in their own reasonableness and adherence to cold fact. But, as we’ve seen many times, Democrats can be as unreasonable and full of it as anyone. Don’t buy this business that the Garland-Gorsuch thing is a new low. We got there years ago.

The Nuclear Countdown

The Democrats now appear to have enough votes to filibuster the Gorsuch nomination. Make no mistake: this is not about Gorusch, who is a mainstream conservative judge (and, in some ways, more appealing than Garland). This is about tit-for-tat for the GOP not considering Obama’a nomination, a game that has been building since the 80’s.

The GOP is now talking about invoking the “nuclear option” to end the filibuster. I would prefer that a deal be struck or, if the nuclear option is invoked, it be invoked narrowly on judicial nominations. The GOP will not be in charge forever and there will come a time where we will need the filibuster to stop a Democratic President. A lot of people complaint that the filibuster is “undemocratic”, to which my reply is generally, “Gee, I hope so.” The system is designed to curb the enthusiasm of the people. It needs to continue to do so.

In this case, however, I think killing it is better than letting it hamstring the judiciary forever.

Update: Just to be clear: I don’t think Gorsuch is ideal. I think he’s about as good as we’ll get. But he does not come without concerns. I’m not referring to his stance on issues, but rather to his background. SCOTUS clerk, boutique law firm, the justice Department, then appellate justice. He doesn’t have a lot of experience of our criminal justice system.

And that’s an issue. As I’ve noted before:

One of the biggest problems with the Supreme Court is that, for all the efforts to “diversify” it, the Court has very little intellectual diversity. Every single judge went to either Harvard or Yale Law. Very few have practiced law and none as a defense attorney. As a result, they say stunningly myopic things about our legal system.

SCOTUS decisions have a tendency to read like the minutes of a Harvard debating society. The justices are extremely knowledgeable. They are full of theory and precedent. But their practical knowledge of how the legal system actually works is limited, at best. They’ll debate points of minutia and legal theory, but miss the big picture. It’s what allows them to uphold assert forfeiture using the pedantic lawyer bullshit that property has no right and so charging the property with a crime is OK. It’s what allows them to claim the grand jury system is a functional bulwark of our liberty. It’s what allows them to pretend that a mandate is a tax.

Gorsuch has a few concerns in this direction. During the hearings, he Democrats focused on the trucker case. A trucker had a broken down truck that was freezing as he awaited instructions from the company. He detached the trailer and drove for assistance and the company fired him. He appealed the firing because, under federal labor law, you can’t fire someone for refusing to operate equipment in an unsafe manner. Gorsuch was in the minority in rejecting his argument, saying that the law only applied to people who refused to operate unsafe equipment, not people who refuse to not unsafe equipment, logic the majority tore apart.

The more I’ve thought about this, the more it worries me. Democrats, being Democrats, focused on the poor trucker. But was I was more concerned about a judge focusing so narrowly on the exact wording of a law rather than the intent of the law. Because laws can not be written to anticipate every eventuality. At some point you have to apply common sense (Common Law). And Gorsuch worries me that he’ll be yet another judge who gets lost in the narrow tiny words of the law and fails to focus on what the law actually means.

(And yes, such narrow focus might have struck down Obamacare. It might also strike down every law out there, including a lot we favor.)

Ultimately, I support Gorsuch’s nomination. But it does not come without concerns. It never does.

The Gorsuch Fight

The hearings for Gorsuch have gone about as well as Republicans could have hoped. He was knowledgable, forthright and responded to questions well. The Democrats have dug through his 2500+ decisions and found a few to make some hay of, but it’s not really going anywhere. So naturally they’re planning to filibuster the nomination.

Look, let’s be clear. If this filibuster happens, it has absolutely nothing to do with Gorsuch. It’s an angry reaction to the Republicans not allowing Obama to fill the seat compounded by the seemingly certain Clinton victory being snatched away. The Democrats had such dreams for replacing Scalia with a big-time liberal and destroying gun rights, crushing federalism and demolishing free speech.

I understand the anger but I think a filibuster would be tactically foolish. Gorsuch is replacing Scalia, a conservative. There is a very real possibility, over the next four years, that Trump will have to replace one of the liberals and will try to replace them with a true rock-head like Pryor. That is the hill they want to die on, not this one. The gripping hand is that, with a bad 2018 election slate, they may not be able to stop a future nominee. The Republicans could, potentially, have a filibuster-proof majority in the Senate. But they have to weigh that against filibustering Gorsuch, provoking the Republicans to nuke the filibuster and then having, say, Ginsburg replaced with someone way worse than Gorsuch.

But … I really doubt the thinking goes that far. As far as the Democrats are concerned, this is a “stolen” judicial seat. And so they will stamp their foot until the roof comes down.

Crumbling The Filibuster

Well, this happened. The Senate has voted for a partial nuclear option on the filibuster. Legislation and Supreme Court justices will still require 60 votes. But other nominees will only need a majority. Normally, senate rule changes require 67 vote, but Reid used a different procedure to pass the change 52-48. The primary issue here was the filibustering of three judicial nominees to bring the DC Circuit to its usual contingent of 11 judges.

As you can imagine, the Republicans are furious and are threatening future actions, including other rule changes by majority once they have the Senate back. It also being pointed out … quite correctly … that the Democrats are raging hypocrites on this subject, having spent the Bush years yammering on about process and sacred institutions and traditions. It was only when their judicial nominees were stalled that the suddenly discovered majoritarianism. I can almost guarantee that when the Democrats lose the Senate, they will unpass this rule change during the lame duck session than scream bloody murder when the Republicans try to restore it.

As for the rule change itself, my reaction is that I wish the Republicans had done this ten years ago. They sorta did when the Gang of 14 got judicial nominees through without compromising the filibuster itself. But I wish they’d made this kind of rule change to solve the problem long-term.

The filibuster is a critical check on the majority. It has stopped some of Obama’s dumber ideas (like card check) and almost stopped Obamacare. But I draw the line when it’s being used to hold up nominations that the President is obligated to make. There are nearly a hundred vacancies in courts around the country — vacancies that are slowing court cases and hurting businesses that need legal issues resolved. I spent most of the Bush years attacking Democrats for holding up Bush’s nominees (Janice Rogers Brown in particular); I’m disappointed that the Republicans decided to play the same game.

(While I’m on the subject, I do want to take on one talking point that the anti-filibusterites suddenly discovered when it was derailing their agenda. They frequently point out that the filibuster would theoretically allow senators representing 20.5 states and as little as 11% of the population to stop the Senate. But that has nothing to do with the filibuster; that’s the way the Senate is constructed. It is also theoretically possible for senators representing 25 states and 18% of the population to constitution a “majority”. The point of Senate is not to represent the people; it’s to represent the states. I have a long post cooking on the “scrap the Constitution” meme that has recently emerged on the Left.)

I don’t like the way this has been done. The Republicans are right that the Democrats have opened a can of worms here to further rule changes and the Republicans going by the absolute strict letter of Senate procedure to slow business even further. The way this should have been done is with another Gang of 14.

Someone Messed With Texas

If you were awake late last night, you saw something pretty extraordinary unfold down in Texas. The legislature was attempting to pass a bill on the last day of the session that would have restricted abortion by (1) limiting it to 20 weeks; (2) requiring that clinics meet medical clinic standards; (3) requiring that abortion providers have hospital admission privileges. Opponents said the latter two would shut down all but five clinics in the state.

A building protest caught spark when Wendy Davis began a 13-hour filibuster to try to prevent a vote. When she was ruled to have broken the rules a third time — once for getting a back brace adjustment and twice for talking about topics deemed irrelevant — her filibuster was ended. What followed was two hours of parliamentary debate. At 11:45, the gallery erupted, shouting down the legislature. They voted for the legislation. But this morning, the Lt. Governor ruled that it had passed after the midnight deadline. For the moment, the bill is dead.

Many thoughts and I’ll have to go with bullet points that sum up much of what I said on Twitter.

  • Once again, the MSM fell flat on its face. Twitter, Facebook and blogs had copious coverage of what was going on. At the precise moment the vote was happening, CNN was highlighting … the calorie content of muffins. I’m calling it: 2013 is the year the MSM died. Almost all the big news — the IRS scandal, the NSA, last night in Texas — emerged from outside the MSM. And their typical reaction has been to either dismiss it or be snide about it, culminating in David Gregory pondering if Glenn Greenwald should be prosecuted for breaking the law (note to Gregory: I don’t think journalists breaking the law is a can of worms to you want to open, asshole). The MSM is still relevant, a little, for foreign news. Or at least they could be. Some journalists, like the ones who exposed the abuse in Bell, California, still fill a role. But the big news houses are nothing but fluff.
  • Probably the most amazing, if unsurprising thing, was the complete reversal of people’s attitudes on the particulars. Liberals who had spent years denouncing the filibuster suddenly thought it was the most awesome thing ever. People who had denounced peaceful Tea Party protests as display of thuggery and racism suddenly decided that shouting down the legislature was good citizen participation.
  • Me? Even though I’m mixed on the abortion issue and prefer the more dignified, restrained and lawful tactics used by the Tea Party, I am encouraged when I see citizens paying attention to what their legislatures are doing. I am always impressed by real filibusters not the bogus “we’re pretending to talk” kind.
  • The law itself, however, is not the most ridiculous thing. As pointed out, many countries have more restrictive abortion laws than Texas tried to pass, including western European ones. France, for example, only allows abortion on demand through 12 weeks, with exceptions for health of the mother or fetal illness. I really think, after the Gosnell horror, abortion clinics should be held to higher standards. And now that we’ve had fetuses survive after being born at 21 weeks, the push to move viability back was not unreasonable. However, the GOP has been winning legislative victory after legislative victory on the abortion issue. Something like last night was inevitable.
  • The victory abortion proponents scored last night may be temporary. There is no force on Earth that can stop Rick Perry from calling a special legislative session today to pass SB5. However, I suspect that the law is dead for now. The GOP, if they are wise … stop that snickering … will take their wins on abortion law and wait for passions to cool.
  • In the end, despite the extremely boring parliamentary debate that pushed SB5 past midnight, I found last night kind of riveting. Not because I am particularly sympathetic to the protesters, but because I am sympathetic to anyone pushing back on government. I want people protesting, calling legislators and getting involved because so many of us have fallen asleep at the switch. Our Republic only functions if we hold our leaders responsible for the decisions that they make and the laws that they pass.

    So my challenge to those who participated last night, even it was just a “StandWithWendy” hashtag is this: are you willing to keep this up? Are you willing to push back on NSA abuses, even when it is the eeevil libertarians raising awareness? Are you willing to protest the IRS targeting groups based on their politics, even when it’s groups you don’t like? In short, are you going to stay involved when it’s not your pet issue? When it doesn’t involve aborting fetuses?

    Because if you’re not willing to stay involved; if you’re going to bash the Tea Party when they do something like this; if you’re going to decry the filibuster when Rand Paul uses it, then you are not a participant, a protester, a citizen, a revolutionary, a patriot or someone who “stands” with anything.

    You’re just a partisan.

    Bluster from the Filibuster Buster

    It seems that Senator Harry Reid (D-Mordor) is out to finally change the Senate rules to limit the circumstances under which a filibuster (or threat of one) can be done.

    My response? Good.

    For too long, the filibuster has been abused by the minority party (both parties at one time or another) to choke the business of the Senate. Worse, Reid has been hiding behind it as an excuse for not allowing anything to get done.

    If he wants to change the rules and start taking more accountability for the poor performance of his chamber, fantastic. Yes, it will suck as long as the Democrats are running the Senate, but I wanted this to happen when the GOP ran the show too.

    This should happen. Let’s start seeing some voting out of there and quit letting them all take political cover behind arcane, non-Constitutional rules.