Thursday, 21 November 2013

Forts On The Filibuster

For whatever subset of my reading population has any interest in US politics but doesn't follow them avidly, it's worth noting that today might be the last day the US Senate maintains the filibuster for judicial nominations. Here's a primer and some thoughts:


Under current rules you need a majority of the one hundred senators (or exactly half plus the Vice President) to vote in favour of a judicial nomination after debate for the nomination to be accepted. However, forty senators is all you need to refuse to hold the debate at all.  No debate, no vote for the nominee.

Why the hell?

Because of the way the US system is put together.  The Founding Fathers and their ideological descendants were big fans of the idea of democracy, but only to a point.  The basic idea behind Congress is that the much larger House - in which people have to run every two years - would respond more of less directly to the will of their constituents, whereas the smaller Senate (only two representatives per state) would have in their six year terms the opportunity to take the long view.  The idea of the Senate as being a kind of brake on the surging public will extended to the idea that bare majority shouldn't be allowed to make massive, sweeping changes that would screw the bare majority over.  Majority rule, in other words, couldn't extend to doing something utterly unacceptable to the minority.

Sounds reasonable

Well, maybe it does, in theory.  In practice, however, each senate in the latter half of the twentieth century and beyond has been more insistent on using the filibuster routinely than the one before.  This is a bipartisan problem insofar as Democrat and Republican Senates have both successively upped the ante, but it was the Republicans who first began misusing the tactic, and it is the Republicans who are using it now to completely lock down the President's appointments.

How bad has it gotten?

Right now the fight is about a Washington DC District Court that's three people down.  The Democrats want to replace those three people and, what with the President being a Democrat, they'd like him to pick three Democrats to do it.  This is how court selections have been made throughout history (with disastrous consequences in the case of the current Supreme Court).

The Republicans are arguing the court doesn't have enough work to justify it being fully staffed, and are therefore refusing any nomination to get a hearing.  The fact that this will tip a conservative-leaning court into something rather more central ("rather more central" being Obama's choice in this kind of thing, whether that's because he doesn't think he can go any further left or because he doesn't want to) is surely a matter of merest coincidence. And by that, I mean it's obvious to everyone that that's the real reason.

So let's get rid of it!

Well, not so fast.  If the Democrats get rid of the filibuster on judicial nominations now, the Republicans will have cover to get rid of it in general the very first time the Senate returns to their control.  Which, given the Democrats only hold it by a narrow margin, could be as soon as next year (every two years, one third of the chamber is up for election).  There's an argument to be made that liberals and progressives are better off sucking up the intransigence of the Republicans now in order to have our own immovable object the next time the levers of power switch position.

Er... does that make sense?

I'm not sure, but I'm betting "no".  For a start, there's absolutely no reason to believe the Republicans will keep the filibuster when they get back into the majority anyway.  Running roughshod over the accepted norms of government is quite simply what they do now.  They know, among other things, that the news media would report such a move as an "opinions differ" piece, and that the ins and outs of Senate rule changes won't generate too much noise anyway.

So not getting rid of it for fear the Republican's will up the ante would be kind of historically myopic at this point.  The second point to make is that whilst the Senate is a battleground, the White House is becoming reliably Democratic.  Democrats won the popular vote five times in the last six elections, and the demographics are just getting worse and worse for Republicans (one of the reasons they were so glad to see the Supreme Court gut the Voting Rights Act; see Supreme Court, disastrous nature of).  A situation in which the Republicans hold the White House and the House of Representatives and the Senate by more than 49 but not more than 59 seats is hardly inconceivable, but its a lot of things that have to go for Democrats, and as mentioned, if this did happen, it's impossible to imagine the GOP keeping the filibuster around in any case.  A party that doesn't censure its members for confessing to passing voting registration laws in order to make it harder for its opponents to vote is not a party that will play by Queensbury rules the instant they're in a position to kick you in the junk.

In short, blow it up.

Update: You maniacs, etc. It's gone and good riddance.  Mitch McConnell's quote is my favourite: "by any objective standard, Senate Republicans have been very, very fair to this president".  The current Republican minority has blocked more presidential nominees for the judiciary than any other Senate in history. The blocking of cabinet appointments is, to my knowledge, utterly unprecedented.  The current senates attempts to block nominees to head up entire departments because they object to the departments themselves is certainly a new phenomenon.

So it would be tempting to assume McConnell is lying here.  Really, though, I don't think he is. I think there's simply a missing coda to that sentence that goes "considering his skin colour".

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