It’s been pretty hot out lately, hasn’t it?
I went on a long walk the other day under the hot sun and started thinking about the recent deal in the Senate. Brokered by the so-called Gang of 14, it basically will allow some judges currently up for judicial appointment to be given “up or down” votes while preserving the right of the minority to filibuster judicial nominees under “extraordinary circumstances.”
I started getting fairly thirsty after a while, and was then reminded of the whole glass is half-full or half-empty analogy.
While there are doubtless many people who are upset with this deal, it makes sense to take a step back and look at the Big Picture for a minute (preferably while drinking a tall, cold glass of the beverage of your choice).
#1 – A historic precedent is preserved
The filibuster has been around since before The Year of the Flood, as my mother likes to say. It’s a historic and important part of our democracy, and something that shouldn’t be lightly dislodged to please the political tides of the moment.
And what’s more, without the filibuster, Jimmy Stewart and Mr. Smith Goes to Washington would have lost its dramatic punch. Heck, the filibuster was already ancient back in those long gone days of black-and-white films.
#2 – Minority rights are protected
While Senate Democrats made a number of concessions, they maintain the historic right and responsibility of the opposition party to vigorously represent an alternative viewpoint.
Slightly less than half the country did not vote for the current President or the ruling party in both houses of Congress. Sweeping away the advice and consent of these teeming millions in appointing lifetime judgeships in the highest courts in the land would be a bad thing indeed. Lewis Lapham, former editor of Harper’s magazine, makes the point that democracy is like a suspension bridge: tension is needed from two sides to keep the structure erect. Remove the tension from one side a la the nuclear option, and we’d likely see more than London Bridge falling down, as the children’s schoolyard song goes.
#3 – They had the votes
The truth is that Senate Majority Leader Bill Frist likely had the votes he needed to drop the dreaded “nuclear option,” which would have lowered the number of votes needed to end debate (or cloture) from 60 to 51. If not for the work of 14 moderate Senators – people like John McCain of Arizona and Robert Byrd of West Virginia – a major and potentially dangerous change to Senate rules would have been passed.
Article comments
1 - Temple Stark
>>#3 " They had the votes
The truth is that Senate Majority Leader Bill Frist likely had the votes he needed to drop the dreaded “nuclear option,” which would have lowered the number of votes needed to end debate (or cloture) from 60 to 51.
Thoughts are mixed on whether that was true. The prevailing thought being if he did have enough votes he would not have let it hang for weeks. Bill Frist was caught between an order and unpopularity and he lost on both counts - apparently.
2 - Jon Sobel
Very nice little analysis, Eric.
I've taken just a little bit of heart from this very small victory of the cooler heads.
3 - Eric Berlin
If the seven republican senators had backed out of the talks with the Gang of 14, Frist would have had his votes.
4 - Eric Berlin
Same here, Jon -- thanks very much!
5 - Temple Stark
There didn't have to be a "gang of 14" or a pierce of paper for them to vote no - There might also have been others who would have voted no but who also didn't want to say so quite so publicly and in such a confrontantiaonal way.
(It's sad isn't it when compromise equates to confrontational).
I don't know - but that's the point. There is no "truth " that Frist had the votes.
Why would't Frist go ahead if he didn't have the votes? Was he just looking for someone to save him from himself?
6 - Eric Berlin
I wrote that Frist likely had the votes -- and I believe he did. I think a small number of Senators -- like Lindsay Graham -- would have voted for the nuclear option if no compromise had been reached. Remember: these votes are public and the Bush Administration would have punished those Republican Senators who strayed on such an important vote.
I think Frist held back for a number of reasons, the biggest of which was the enormous risk he, the President, the Republicans, and the Congress would be taking by dropping the nuke. Senate business would be thrown out the window, and all we'd hear about until November 2006 is the gridlock caused by that decision. It would be up to the voters on who to blame for 18 months of a do-nothing Congress.
So the compromise was a victory in saving us from that mess as well.
7 - Temple Stark
Yep, I missed the "likely." Still, it's a shaky assertion.
But the Bush administration would punish on one hand and "Frist held back for a number of reasons, the biggest of which was the enormous risk he, the President, the Republicans, and the Congress would be taking by dropping the nuke."
Those two ideas don't seem quite compatible.
Looks at watch. BC time. Time for someone not part of the discussion to come in and insult me out of the blue.
8 - gonzo marx
>looks up<
ok Temple, where's the snake?
heh
Excelsior!
9 - Temple Stark
I've heard that may times before. And not in an insultng way. :-)
10 - Eric Berlin
We're all taking potshots these days, TS.
11 - Temple Stark
Downward spiral
12 - Dave Nalle
>>Why would't Frist go ahead if he didn't have the votes? Was he just looking for someone to save him from himself?<<
I think that's exactly right, Temp. They wanted to look strong and aggressive, but not go all the way and destroy a practice which has worked to their benefit in the past and will again in the future.
Dave
13 - Bennett
Enjoyable reading. Thanks guys.
14 - Randy Kirk
The analysis is a soft sell of the left wing position, which wasn't the dem's position 10 years ago.
The other side protests that the filibuster (to be preserved at all) needs to be used sparingly. The constitution tells us where it requires votes above 51%. The filibuster is a Senate rule and subject to change (which it has been.) It has almost, very close to, never been used for appeals court nominees.
In this case it was used 10 times. This is not what the filibuster was intended to do. It was an abuse by the minority. The abuse needed to be dealt with.
Sorry for those who are hoping to deny the conservatives their judges, but I think this was actually a graceful complete capitulation by the left. The next few weeks will tell. If there is a filibuster attempt of a decent judge, the constitutional option will be dropped immediately.
15 - Eric Berlin
Yes indeed, all abuses by ze left must be dealt with. Any further abuses and ze Leftist Question will be dealt with swiftly and immediately.
16 - Bennett
Damn, EB you have a way with ze words.
17 - Mark Saleski
dat's right. rk has it nailed. the filibuster was created for the sole purpose of providing the republicans with a check against left wing lunacy.
all other uses are unconstitutional.
or something.