“They Had A Choice”: Did Frustrated Mainstream Republicans Help Pull The Nuclear Trigger?
The big mystery of today’s majority-imposed rules change in the Senate is: What happened to the deal-making Republicans?
There’s nothing much to figure out on the Democratic side. It was clear to most observers that the three-seat blockade of the D.C. Circuit Court was solidly over the line separating Democratic senators’ individual preference for maintaining the filibuster and their party interest in seating a Democratic president’s choices for the federal bench. Democrats believed that they had no choice but to proceed.
Republicans, however, certainly did have a choice. After all, in the short run, they’re clearly worse off by this change than they would be had they used the filibuster far more selectively. That was enough to get them to compromise the last time this happened. So why didn’t they hold back again?
One possibility is that they simply miscalculated, believing that Senate Majority Leader Harry Reid (D-Nev.) was bluffing. If that was the case, however, they could have backed off at the last second.
A second possibility is that they really wanted to eliminate the filibuster, and that they believed that the cost to the Democrats for pulling the trigger was great enough that it was worth the potential three years of majority-confirmed President Obama nominees. That’s possible, although it’s very hard to believe that voters will care at all, and Republican arguments (court-packing!) did not appear designed to appeal to those who might have been willing to condemn Democrats for a “power-grab.”
So here’s a third possibility. The problem with the summer compromise is that it was horrible for deal-making Republicans. The deal essentially said: Republicans will continue to filibuster nominations, but will supply enough votes for almost all of them so that the filibusters will be defeated. But that meant that in practice a handful of Republicans were forced to tag-team their votes, making sure that Democrats always had 60. What’s more, the shutdown fight — which began right after the Senate deal was struck — revealed that radical Republicans led by Sen. Ted Cruz (R-Tex.) were eager to scapegoat those same deal-making Republicans. That raised the cost of the executive branch nominations agreement for tag-teamers such as Sens. Lamar Alexander (R-Tenn.), Bob Corker (R-Tenn.) and John McCain (R-Ariz.). In other words, the summer deal might or might not have been stable, but it certainly couldn’t hold in a world in which the majority of Republican senators are looking for ways to separate themselves from mainstream conservatives, and then using that separation to attack them.
Those deal-making Republicans did have another option; They could have just abandoned the radicals. But over what principle? After all, the situation here is that it’s the radicals, not the mainstream conservatives, who want to hold up all these nominations. One way to look at what happened today is that the deal-makers were getting out of the way and allowing the radicals to lose. If the outcome is the same — Obama’s judicial picks get confirmed — then why should the deal-makers ask for the blame for it?
We don’t know yet, and perhaps we won’t, but my guess is that the way Cruz and other Republican radicals acted during the shutdown is what explains the difference between a successful deal in the summer and today’s nuclear action.
By: Jonathan Bernstein, The Washington Post, November 21, 2013
“Judicial And Legislative Nullification”: Republicans Have Only Themselves To Blame For Harry Reid’s “Nuclear Option”
If the Founding Fathers could see the Senate after today’s vote by Senate Democrats to prohibit filibusters of most presidential appointments, they would, of course, be appalled. ”What are all these women doing here?” they would ask. But as for the filibuster reform, they’d wonder what all the fuss was about.
There is no mention of the filibuster in the Constitution. Until very recently in U.S. history, filibusters were rarely used. Half of all filibusters of executive-branch nominees have occurred under President Obama, and it was obvious from the first day of his presidency that Republicans would use the tactic to hamstring the government and block Obama.
Senate Majority Leader Harry Reid, then, had every right to push for changes to filibuster rules four years ago, when GOP use of the filibuster was already out of control. But instead, Reid offered deal after deal to Senate Republicans. They accepted some. They honored none. Instead, the delaying tactics have continued. Frequently they have been used to block the implementation of laws the Senate had passed — the two-year filibustering of the first head of the Consumer Financial Protection Bureau, for example, just because Republicans didn’t like the law. And Republicans have paired judicial nullification with legislative nullification, blocking a record number of Obama’s judicial appointees — a power the Constitution actually mentions, unlike the filibuster — for no real reason other than that they were Democratic nominees, not Republican ones. (Democrats were guilty of this under President George W. Bush as well, it must be noted, and deserve criticism for that, even if the number of filibusters was lower.)
The result, as political scientist Gregory Koger summed up nicely for my Post colleague Ezra Klein, has been the solidifying of a new order in the U.S. system of government:
Over the last 50 years, we have added a new veto point in American politics. It used to be the House, the Senate and the president, and now it’s the House, the president, the Senate majority and the Senate minority. Now you need to get past four veto points to pass legislation. That’s a huge change of constitutional priorities. But it’s been done, almost unintentionally, through procedural strategies of party leaders.
This status quo is unacceptable and had to change.
But Reid never would have used the “nuclear option” without the lemming-like behavior of Senate Republicans. Less ideological GOP members could have voted more frequently to break cloture and force an up-or-down vote, as members of both parties have done, even as filibuster use has increased. They could have stopped the unprecedented number of filibusters of presidential nominations, given that the president has a clearly defined constitutional responsibility to appoint people. They could have stopped blocking duly passed laws. But they didn’t.
So Republicans decrying filibuster reform as “dictatorial” or “a day to be sad” or other hyperbolic claims should look in the mirror. No one forced them to turn filibusters from a rarity to an oft-used tool for nullification and unprecedented obstruction. They have only themselves to blame.
By: James Downie, The Washington Post, November 21, 2013
“Norms And Rules Are For Suckers”: Don’t Believe The Republican Cries Of Vengeance
So now the Democrats have exercised the “nuclear option,” which is not particularly nuclear. They’ve changed existing Senate rules so that judicial nominations can not be filibustered, but can pass with a majority vote. Over the next couple of days you’ll hear Republicans say that this is the most horrifying power grab since the February Revolution of 1917. They will weep and beat their breasts, lamenting the death of fairness and democracy, predicting all manner of horrors, perhaps culminating in a zombie apocalypse, now that a judge nominated by the president can be confirmed with a vote of a majority of senators. But then, their grief will turn to steely determination. “You shall rue this day!”, they will cry. “Revenge shall be ours!”
And that might sound like a reasonable argument for why this rule change was ill-advised. After all, as Iowa senator Chuck Grassley recently threatened, “So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases that we’d love to put on the bench.” In other words, without the restraint of the filibuster, the next time Republicans have the White House and the Senate, which will happen eventually, they’ll go hog-wild, appointing the most radical conservatives they can find. But there’s one big reason that argument fails: They would have done it anyway.
Let’s not be naive here. The Republican party of today is not only ideologically radical but procedurally radical as well. They’ve taken virtually every opportunity they could to upend whatever rules and norms stood in the way of them getting what they want. Let’s say that it’s 2017 or 2021, and they’ve won the presidency and the Senate. Can anyone believe that if on this day in 2013 the Democrats decided to keep the filibuster for judicial nominations, Republicans would then do the same out of a sense of fair play? This is the party that over the last five years has filibustered literally every bill of greater consequence than renaming a post office. This is the party that got conservatives on the Supreme Court to upend the Voting Rights Act, then literally within days began passing one law after another to make it as hard as possible for minorities, students, and anyone else likely to vote Democratic to cast their ballots. This is the party that shut down the government in its endless quest to repeal the Affordable Care Act. This is the party that sincerely believes that its opponents are attempting to destroy America, and therefore any tactics are justified in order to stop them.
You can put the start date of this procedural radicalism at the inauguration of Barack Obama, but I’d date it back to the Florida mess in the 2000 election. In case your memory of that episode has faded, the whole election came down to a series of counts and recounts in a state in which the Republican candidate’s brother was the governor and his campaign co-chair was the state’s chief election official. Throughout the weeks that followed, Republicans did things like organize a small riot to intimidate election officials into not counting ballots, and the election was ultimately decided by five members of the Supreme Court who were so shamelessly partisan that they included in their decision an instruction that it could never be used as precedent in a subsequent case. And you know what price the Republicans paid for their ruthlessness? None.
It was then that Republicans realized once and for all that norms and rules are for suckers, and at the end of the day, the only thing that matters is whether or not you win. That belief hasn’t changed, even as the party has grown more ideologically extreme over the last five years. You can make an argument that Democrats should have taken the high road and not changed the filibuster rule today. But if you think Republicans wouldn’t have changed the rule to benefit themselves at the first chance they got—no matter what Democrats did—then you haven’t been paying attention.
By: Paul Waldman, Contributing Editor, The American Prospect, November 21, 2013
“The Real Roots Of The Filibuster Crisis”: This Is About Whether Barack Obama Is Legitimately The President Of The United States
We’re about to have ourselves a little filibuster crisis, and the only surprising thing is that it took so long. We’ve now reached a point where Republicans no longer accept that Barack Obama has the right, as president of the United States, to fill judicial vacancies. Unlike in previous battles over judicial nominations, we’re not talking about the nominees’ qualifications or their ideological proclivities. It’s merely a question of the president’s constitutional privileges. Republicans don’t think he has them. This is only the latest feature of a long descent for the GOP away from considering any Democratic president—but particularly this one—as a legitimate holder of the office to which he was elected.
There has never been a president, at least in our lifetimes, whose legitimacy was so frequently questioned in both word and deed by the opposition party and its adherents. Even today, many Republicans, including some members of Congress, refuse to believe that Obama was born in the United States. Right after he was re-elected, 49 percent of Republicans told pollsters they thought ACORN had stolen the election for Obama, a decline of only 3 points from the number that said so after the 2008 election, despite the fact that in the interim, ACORN had gone out of business. Think about that for a moment. How many times have you heard conservatives say that the Affordable Care Act was “rammed through” Congress, as though a year of debate and endless hearings and negotiations, followed by votes in both houses, followed by the president’s signature, was somehow not a legitimate way to pass a law? In short, we’ve seen this again and again: it isn’t just that Republicans consider Obama wrong about policy questions or object to the substance of one or another of his actions, it’s as though they don’t quite accept that he’s the president, and everything he does carries for them the taint of illegitimacy.
If that’s where you’re coming from, it seems perfectly justifiable to upend the norms that have traditionally determined how things work in Washington. One of those norms is that while it’s common to fight against the judicial nominees of a president from the other party, you have to at least have a gripe about each of those nominees. But Republicans are no longer bothering with that. The current argument is about three vacancies on the D.C. Court of Appeals, widely understood as the second most important court in the system, because it deals with many cases concerning government’s powers (four of the nine current Supreme Court justices came there from the D.C. Circuit). Republicans argue that by attempting to fill those vacancies, Obama is engaged in an unconscionable act of “court-packing,” and besides, the D.C. Circuit doesn’t have enough work to do anyway, so the seats should just remain empty.
Until there’s a Republican president, of course! Though they haven’t said so explicitly, here’s a suggestion for Capitol Hill reporters: Next time you’re interviewing a Republican senator who says he’s filibustering these nominations because the D.C. Circuit doesn’t have enough work to do, ask him if he’s willing to make a pledge, right there and on the record, to filibuster any appointment the next Republican president makes to that court. See what he says.
Anyhow, Harry Reid is now threatening to eliminate the filibuster for judicial nominees altogether, something he can do with a simple majority vote. But he’ll need to get 50 of the 55 Senate Democrats to vote for it, and there’s a good deal of reluctance to do so, particularly since Democrats won’t be in the majority forever, and whenever they’re back in the minority they’ll want to have the filibuster for themselves. But according to recent reporting by Greg Sargent and others, Reid thinks he has the votes and is just about ready to pull the trigger if Republicans don’t relent on these three nominees.
But the threat of the “nuclear option” of eliminating the filibuster for nominees could be just a negotiating tactic. The outcome Democrats would probably most prefer is what happened the last time we went through this, in 2005. In that case the controversy was over a group of Bush appointees who were true radicals, none more so than Janice Rogers Brown, who calls the New Deal a “socialist revolution” and says things like, “In the heyday of liberal democracy, all roads lead to slavery.” That controversy ended with an agreement in which Bush got his nominees—Brown now sits on the D.C. Circuit—and Democrats promised to use the filibuster only in “extraordinary circumstances.” In other words, it was a complete win for the Republicans. The biggest difference between then and now is that Democrats never questioned whether Bush had the right to fill judicial vacancies; they had specific objections to particular nominees.
In the various flare-ups of the birther controversy, reporters would occasionally ask Republican members of Congress very basic questions, like “Do you think the President was born in the United States?” The answers were incredibly revealing. Some simply said yes, but others hemmed and hawed, saying things like “It’s not my responsibility to tell people what to think” or “I take him at his word,” as though there were still some doubt. It’s time they got asked the same kind of questions about this crisis. If you asked Republicans, “Does Barack Obama have the right to fill judicial vacancies?”, I honestly have no idea what they’d say. But it would be interesting to find out.
By: Paul Waldman, Contributing Editor, The American Prospect, November 20, 2013
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