Home / A Modest Proposal on Senate Judicial Filibusters

A Modest Proposal on Senate Judicial Filibusters

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Republicans have been going around making the claim that the Democrats in the US Senate have filibustered 10 judicial nominations. Give or take maybe one example, this has never been done before.

Thing is, the Democrats haven’t really filibustered ANY of these nominees. I watch C-Span pretty regularly, and I don’t recall seeing Evan Bayh making like Jimmy Stewart- with his collar pulled open, hoarse and weak from 24 hours speaking against Priscilla Owens.

No, these pansy Republicans have just let the Democrats have the point. Just SAY that you’re going to filibuster, and the Republicans give up. Good on the Democrats for being clever enough to put this off on the opposition. The Republicans have given them a big fat freebie.

Now, the lazy Republicans wish to bypass this with the “constitutional option” or “nuclear option,” depending on your perspective. That is, Frist is considering simply declaring filibusters out of order, and proceeding by majority vote. He and other Republicans insist that this would only be stopping filibusters for judicial nominations, and would not apply to other senate business. Why one and not the other?

Granted, the Democrats have been pretty abusive of the process vis a vis these Bush judges. However, before we start making changes to important longstanding rules that have held the body in good stead, we ought to look for a better way.

Obviously, the Republicans should simply call their bluff. Bring one of these problematic nominees up, and make the Democrats actually filibuster. Their people are putting out ads with Jimmy Stewart and his big dramatic filibuster from Mr Smith Goes to Washington. Make them do it. I’d be particularly enjoy watching their grand wizard, ol’ Robert Byrd talking for 8 or 10 hours against Janice Brown.

An actual filibuster would likely have serious and increasing political costs to the Democrats. They’d get some public disdain for shutting down the work of government, much as the Republicans caught hell for the Clinton era “shutdown.” Day by day, this obstructionism would make them more unpopular with the public.

The public would likely be wanting some pretty strong justification for what made the nominee bad enough to shut down the work of the senate over. The Democrats lack the talent to make such a case, even if they had a good one. They don’t here. I’ve seen Harry Reid, and he’s no Jimmy Stewart.

Plus, they’d be on the record and on C-Span 24/7. Make these buggers actually talk for several days straight. Imagine how much stupid stuff would inevitably come out of their mouths and onto videotape.

Consider the fodder for the late night comics and bloggers. Consider the fodder for attack ads against the senators back home during the next election. Plus, they’d just physically wear the Democrats down.

Largely, we’re getting all these so-called filibusters because the majority party is giving them away. Make them pay for the play, and you won’t get near so much of it.

My best guest, the Democrats would do this once. They’d hold out for two or three days, and then buckle under mounting public disapproval. That’d break them from sucking eggs.

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  • There was a lengthy filibuster (or something like it: 24 or so hours of continuous debate on the issue of judicial nominations) a year or so ago and it wasn’t a big deal.

    You make some interesting points, Al, but I must point out that the 10 judges the Dems have problems with are less 5% of the total who have breezed through the nomination process — which I believe gives Bush a higher success rate for getting his judges to the bench than the last several administrations.

    Are the Dems just supposed to roll over and not take every step to oppose those judges they have a major ideological difference with?

    The second term of the Bush Administration is starting to creak already. Firing the nuclear option could completely backfire and cause a major Dem resurgence at the polls in ’06.

  • sal

    Excellent commentary. I agree, requiring the democrats to “really” filibuster would be a real treat. Could you imagine some of the pearls that would come out of Robert KKK Byrds mouth? Remember the grandmaster on Fox news, speaking about “white niggers”? That interview was only ten minutes, and he couldnt keep his rascist feelings bottled up. If he is forced to ramble for ten hours, he might even speak about some of the lynchings he participated in.

    Eric- Of course the Democrats are “supposed to roll over and not take every step to oppose judges they have major ideological differences with.”
    NEWSFLASH!!! The Democrats are in the minority for a reason-and that is because the electorate put them there. The democrat talking point that “the minority in the senate actually represents a majority of americans” is totally irrelevant, because our constitutional republic was set up in a manner that allowed the smaller states equal representation in the Senate. That is one of the “checks and balances” the founders set up-and listening to the Democrats completely twist and contort their perverted position as being what the founders intended, under the guise of “checks and balances” is completely ludicrous, and double speak at its finest.
    Furthermore, the unwritten rule has been that confirming judges required a simple majority. And the GOP has honored that rule, and they have also given great deference to the president, EVEN WHEN THE PRESIDENT WAS NOT A REPUBLICAN. Do you really think, that the Republicans did not have “major ideological differences” with Clinton appointee RUTH BADER GINSBURG?? She was confirmed with only 3 dissenting votes, IN A SENATE CONTROLLED BY THE REPUBLICANS. She is a rabid leftist. And what do the Democrats do, when they are in control, and a candidate is presented who is on the other side of the spectrum, ie Robert Bork?? They dont confirm him. Bork was to the right what Ginsburg is to the left. Bork gets rejected by a Democrat senate. Ginsburg gets confirmed by a Republican senate.
    The GOP sat back and allowed leftist on the bench, and they should have been given the same courtesy when they assumed control. But Democrats do not play fair. The Republicans would finally be able to get conservative judges on the bench, because they now have EARNED control of the Senate. No more Borking. But of course, Democrats reach into their bag of tricks, and pull some nonsense that is completely unprecedented. They are in the minority? So what-they will stoop to an even lower level than they have up until this point.
    The only thing worse than a loser, is a sore loser.

  • Bob

    Imagine the fun games that the Republicans could play with a REAL filibuster. They could call for votes in the middle of the night (10 minutes notice), warning only their own side in advance. They could call for fake votes, warning only their own Senators not to respond, & call them off at the last minute. They could post lookouts to see when Dems go to the bathroom &/or take showers & call votes.

    A week of this & the Dems would crawl away on their bellies with their tails between their legs. Do you really think the Kerrys, Kennedys & Rockefellers are up to suffering personal hardship in pursuit of their agenda?

  • gonzo marx

    to Bob..
    look up “unanimous consent” and see why your idea is peurile and sillier than it appears..

    as for sal..
    *The Democrats are in the minority for a reason-and that is because the electorate put them there.*
    newsflash for you buddy..in the Senate the minority DOEAS actually represent the majority of the population at this moment..that is simply because that the senate places 2 members fo reach state REGARDLESS of population…

    so..add up the populations of each party represented in the senate and you will see what i mean…the 2 senators from wyoming don’t reresent even as much population as resides in the Bronx , much lesss all of New York state for example..

    i know..damn inconvenient facts…but there you are

    as for the amount of judicial nominations passed…Bush II 205 out of 215 so far…no new nominations since the Inauguration..previous administration was down 68 nominees NEVER EVEN GETTING to comittee, much less theo so-called precious “up or down vote”

    so spare me the propaganda…k?

    and finally to Al…fun stuff there, never thought i woudl find you so whole heartedly in the GOP camp…but ah well…


  • Monsieur Berlin, of course the Democrats should be trying to leverage every advantage they have to get their way. Note the good-for-them comment in the post.

    But the Republicans are the majority, and so they should mostly come up ahead at the end of the day. Making the Democrats pay the normal legitimate price for the filibuster is perfectly legitimate counter strategy. There’s nothing underhanded or sneaky about it.

    You can argue about the majority thing. Democrats represent the majority number of citizens in the senate, but not the house, nor the presidency. The public is somewhat evenly divided, with lots of people obviously voting for Democrat senators and Dubya both.

    Gonzo, go easy on lumping me in with Republicans. A lot of the time, they cheese me off worse than the Democrats.

    I do, however, tend to side with them on these judicial issues. The constructionist or originalist philosophies will tend to make better, ie less activist courts.

  • *ahem* Al, m’boy, the valiant efforts of Stewart’s Mr. Smith in pursuing his filibuster were required because he was alone in the fight. It wouldn’t take all, or even many, of the Senate Dems to put on a solid filibuster.

    So in acquiring the Stewart cloak for their faux-filibuster, Democrats have already taken the aggressive. Which of us doesn’t remember that Mr. Smith was on the side of liberty and the Constitution? And that his opponents were sly, underhanded so-and-sos?

    Like you, I’d like to see the Republican Senate call their bluff. But do it with the recognition that Americans tend to root for the underdog…

  • gonzo marx

    uncle Al, the kiddies pal..

    no worries about the “lumping” bit..

    but i am suprised to find you so gullible about the GOP intentions when it comes to the judiciary

    do you truly believe they intend to place real “constructionists” to the bench? or is it more likely they will be putting their own type of idealogues in place..

    after all, the Shrub’s idea of a strict “constructionist” is Scalia..you know..the guy who, from the bench in the recent Ten Commandments case stated that “our Laws come from God”

    this sounds like a guy with a constructionist view of a document written by advocates of the Enlightenment?

    spare me the innocence…i had thought better of not only your innate cynicism towards the demlicans and repubocrats but your thought process as well

    in the words of Zach de la Rocha of Rage Against the Machine “know your Enemy”


  • Yeah Pat, they wouldn’t have to have ONE senator stand up for days at a time, they could take shifts, and it wouldn’t take all of them to do it. A dozen taking shifts could carry on for a good long time. Nonetheless, it would still be pretty physically grueling.

    Also, it WOULD take the co-operation of nearly all the senators to keep it alive. They’re not going to expect the presidential candidates, ie Bayh and Clinton, to actually do a lot of the talking- but they’d still have to keep voting to keep it going. How much of that bad PR do you think they could stand before a half dozen members buckle?

    Stewart’s filibuster worked basically because he was righteous, and calling public attention to his issue in this way brought public sentiment to bear on his side. I strongly suspect, however, that the closer the public looks at this, the less sympathetic they will be to the Democrats.

    24 hours of talking, as Eric Berlin mentioned in comment #1 wouldn’t get much attention. That ain’t no filibuster, it’s just a warm-up exercise. Wonder what the public sentiment would be after a hundred or two hundred hours?

  • Perhaps you’ve taken one too many Gonzo pills there. I wouldn’t give a blanket endorsement to anyone on the Supreme Court, but I’m not going to get my panties in a bunch over a passing invocation of God. Now, if Scalia starts going all Roy Moore on us and moving a five ton Ten Commandments memorial into the court- then I’ll start getting concerned.

    However, Scalia and Thomas have been more inclined than other judges to exercise judicial restraint. Their overall political philosophies aren’t that relevant, in that they are disinclined to legislating from the bench.

  • gonzo marx


    that was NOT a “passing invocation” there Al…

    go check out the Transcripts..as well as looking closely at my Quote above..

    it is the difference in believing that our Laws stem from the Constitution as written by Men and in thinking that said Laws come from God

    this shows a certain mindset, don’t you think?

    one that is quite dangerous to those of us that believe in the principles of the Enlightenment as put forward by the Founding Fathers in the Constitution which is the social contract between we Citizens and our representitive Government…

    or don’t you see the dangerous analogy in Scalia’s statement and the old “divine right of kings”

    that’s the shit that scares the hell out of me

    your mileage may vary…