House of Eratosthenes

Here is the link to the Wikipedia page on filibusters. It’s probably worth bookmarking, since Wiki can be updated by the community-at-large, and the subject is a procedure that is enjoying a rapidly evolving history at the moment.

There are four things I’d like to highlight from a high-level history of the filibuster. This just has to do with how we got the filibuster and what it’s all about — these highlights are not Republican-friendly or Democrat-hostile, they’re simply facts.

In 1789, by following Senate rules, you could shut a fellow Senator up and “move to the previous question”;
This was changed in 1806, so that you had to let the Senator talk as long as he wanted, and the filibuster was born;
In 1917, the motion of cloture was born — with a two-thirds super-majority (of those voting), you could end the filibuster;
Since 1917, a number of changes have been adopted adjusting the super-majority — it goes down when Senators think it’s too hard to reach, it goes up when they think it’s too easy.

This clashes head-on with what people have been “educated” about this procedure. Ever single water-cooler or pool-hall debate I’ve seen on filibusters, someone will casually refer to the filibuster as a time-honored tradition that has been with our nation since the very beginning. It’s not so. When our nation got started, debate was brought to an end and attention was moved to action, or other issues, just like in any other deliberative body. After the filibuster arrived, another century came & went before we got to this idea of using it to force a super-majority.

And since then, we’ve been quibbling about what the super-majority is.

This is simply not a part of what you would call “tradition” and it certainly isn’t part of the spirit of the Constitution.

Here is the link to the much-discussed Washington Post poll indicating that “most” Americans are opposed to the rules change that would end filibustering of judicial nominees. The Washington Post got into a little bit of hot water over this. The story surfaces in chat rooms and around water coolers, as evidence that Americans want to keep “the filibuster”. This is an accurate reflection of the issue but it’s not an accurate reflection of the Post’s story. The Post’s summary is “a strong majority of Americans oppose changing the rules to make it easier for Republican leaders to win confirmation of President Bush’s court nominees, according to the latest Washington Post-ABC News poll”. It does not use the word “filibuster”.

The question that was asked of the 1,007 respondents, also, does not use the word “filibuster.” As the story has been repeated, reprinted and regurgitated, the word “filibuster” sneaks in — two-thirds of us are “opposed to ending the filibuster”. This goes back to the headline that was used internally by The Post itself, so The Post is guilty of producing more confusion than clarity here. Ombudsman Michael Getler addressed the issue here.

For those who are not familiar with ombudsmens’ columns, they can be pretty unsatisfying, especially when you think something’s amiss and the ombudsman agrees with you. The ombudsman recites the facts, then he goes into reader reactions, then usually he will partially exonerate the newspaper before diving into what he thinks ought to have been done differently. End of column. And you’re left asking, “and…?” It’s human nature to hope that somewhere, some reporter is being summoned into his editor’s office and called to account for making the ombudsman upset. Maybe having his paycheck docked. It’s not gonna happen. Ombudsmen usually don’t have “teeth”, and cannot have teeth. They write their opinion that “shuckee darn, yup, that sure isn’t a good thing” and that has to be the end of it.

My take on it is, while there is always a danger of a “false consensus,” there are some issues where a poll does more to invite confusion and abuse than it does to settle any uncertainties, and this is one of them. Americans distrust politicians. If this isn’t subject to serious dispute, why conduct a poll about it? You don’t have to. Okay, why do Americans distrust politicians? A lot of it has to do with this stereotype about collecting fat paychecks, sitting around debating endlessly, doing nothing. Is that subject to disagreement? I don’t think so. So what exactly is a filibuster?

So we’re keeping this “time-honored tradition” of the filibuster as a mechanism to prevent majority rule in a popularly-elected legislative body. Here is your link to the Memorandum of Understanding text that represents the agreement reached by Democrats and Republicans in the Senate. What it means, is a matter of opinion. The binding effect of the Memorandum, also, is a matter of opinion, and since the consequences of breaking it are going to be purely political, my opinion is it doesn’t mean much.

Are filibusters of judicial nominees unconstitutional? Absolutely! The Constitution comments only on “Advice and Consent” in Article II. The relevant passage says the President “…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”. This means (in just my uneducated opinion) such Advice and Consent is a right, and an obligation, conferred upon the Senate.

Now you can take what follows for what it’s worth; it might have some relevance to the discussion.

When the words, above, were written, we did not yet have a Seventeenth Amendment which makes the Senators subject to popular election. Back then, the States had representation in our nation’s capitol. If we had a President who did just a dandy job of representing the Will of the People, but was overly hostile to the interests of State legislatures, and manifested that hostility in his nominees, it was the job of the Senate to shoot his nominees down. To shoot them down. Not to use procedural rules to sit on the nominations. Senate Rules are just fine, but the Constitution trumps them.

And the Constitution requires the Senate, which was designed to be the representation of State legislatures, to give a vote. Advice and Consent. The nomineee gets in, or he doesn’t. But give your answer. The President can’t do anything without the Senate, that’s the “Consent” part; the Senate gives its answer, that’s the Advice part.

Nowadays, the Senate represents the people, effectively functioning as a second House of Representatives. As a separate chamber, it has its own rules, and we have some loudmouths running around — most of them Democrats — inferring that these separate rules are a traditional way of forcing more calm, cool, deliberative debate in the upper chamber. This is just so much nonsense.

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Here’s My Whole Deal on FilibustersWednesday, May 25th, 2005

Here’s My Whole Deal on Filibusters
Wednesday, May 25th, 2005