OLEAN -- Here's a prediction: The coming session of Congress will draw the historical label of a do-nothing body of lawmakers that frittered away several chances to improve the nation and body politic in a crucial period of the American experience by bloviating endlessly.
Why? Two words little recognized or understood by Americans -- filibuster and cloture. The lawmaker logjam will occur in the Senate, where these maneuvers are used, and it will completely cripple the federal legislative procedure for months.
A filibuster occurs when members of one party in the U.S. Senate use extended debate -- sometimes weighty and intellectual, sometimes nonsensical -- to block legislation. They do this when they know they are on the losing side of the potential vote tally. In the history of this illustrious body, some senators have recited poetry, read irrelevant letters from relatives, referred to nursery rhymes, recited recipes and sonorously intoned long passages from the Bible to avoid a vote and defeat of their position. Both Republicans and Democrats have used this tactic.
Cloture is the mustering of enough votes to break a filibuster. In the six decades before 1975, that number necessary for ending debate and calling the vote was two-thirds of the Senate (today that would be 67 votes). The cloture rule number was changed 30 years ago to three-fifths, or 60 senators, to cut off a filibuster.
Trivia and uninteresting minutiae, you say? Hardly.
In the upcoming battle over these procedures, the shape of American jurisprudence and judicial behavior will be settled for decades to come.
At the root of this impending floor struggle are two factors -- growing bitterness from Democrats over President George W. Bush's judicial selections and growing anger from conservative Republicans over the prospect of seeing their "mandate" from recent elections to mold a conservative judiciary ruined by filibustering liberals and moderates.
The Senate has the constitutional job to advise and consent on White House nominations to the federal judiciary -- from the Supreme Court, through the appellate system, right down to federal judges at district court level.
To invoke cloture and break a filibuster, the conservatives need 60 votes. The numbers shake out this way: the Senate currently is composed of 55 Republicans, 44 Democrats and one independent. This portends some grim algebra for right-wingers and the White House if Senate opponents of Bush's judicial nominations get their act together.
So, the Bush administration's strategy for smoother judicial appointments is typical of the current power structure -- change the rules.
Many GOP senators want to alter the cloture rule so that a simple majority could cut off debate -- 51 votes. That would be a number relatively easy for Republicans to obtain if current head-counts are accurate, although some GOP senators (think: John McCain of Arizona, or Chuck Hagel of Nebraska) probably will oppose the change. Going from three-fifths for cloture to a simple majority vote would almost certainly castrate the power of Democrats to block Bush's federal bench picks. Not that the Democrats have been able to wreak much confirmational havoc with Dubya's choices so far -- of more than 200 of Bush's first-term judicial nominees, Democratic filibusters, or the mere threat of one, halted only 10 appellate court choices.
This new rule, if passed by the Republican majority in the Senate, would mean a mammoth change in the way the "world's greatest deliberative body" (as the chamber's boastful members like to characterize themselves) does business. It would be such a stark transition that the idea has taken on an evocative nickname within Senate corridors -- first bestowed by former Senate Majority Leader Trent Lott of Mississippi -- "the nuclear option."
Ending debate with a simple majority vote has political tendrils that reach all the way to our cherished idea of checks and balances, of maintaining a healthy two-party system, of taking into consideration minority arguments.
One assured result of the change would surely make Page One headlines -- a smooth confirmation of whomever Dubya selects for the Supreme Court to replace Chief Justice William Rehnquist, who is suffering from thyroid cancer and is expected to step down soon.
So why would this cripple Congress?
Because Democrats swear an all-out partisan war will ensue if the cloture requirement is changed to a simple majority -- and they have some tactical weapons available. Senate rules accord the minority other chances and means to effectively oppose the majority. The Senate, in day-to-day activity, is most efficient when it runs on "unanimous consent." The average daily load of maybe a dozen nominations to this or that post and perhaps a half-dozen bills are usually greased along the legislative path without time-consuming reading of the bill itself and numerous amendments -- lubricated by motions, usually approved by voice, for "unanimous consent."
Any one senator, however, can insist that each and every bill be read in toto, or that every vote be taken by laboriously calling the roll. It can bring the venerable chamber to a screeching halt.
Sen. Arlen Specter, the Pennsylvania Republican who chairs the Senate Judiciary Committee, told the Washington Post in late February that going to the "nuclear option" would mean "the Senate will be in turmoil and the Judiciary Committee will be in hell."
One of the reasons Senate Democrats are unnerved and angry is the determination (they view it as obstinacy) of President Bush to renominate conservative judicial choices who had already been filibustered successfully by the minority in 2003. Usually, such rejected nominees are not even mentioned again as possible judges.
"This crowd wants to shove everything down our throats," complains Sen. Joseph Biden, the Delaware Democrat who chaired the Judiciary Committee in the Ronald Reagan years. Filibusters, he told writer Jeffrey Toobin in "The New Yorker" magazine, "make sure that a minority gets a voice." The Bush conservatives, Biden said, "don't pull back on anybody."
Both Democrats and Republicans have effectively used filibusters to stop nominations and legislation favored by opposition-party presidents.
Some Democrats still are sore that, in Bill Clinton's first term, conservative senators used the windy procedure to block the Arkansan's first choice for surgeon general, an otherwise qualified home-state gynecologist who had performed abortions. Republicans are still fuming over minority use of the filibuster two years ago to stonewall Bush's nomination of the respected Miguel Estrada to the U.S. Court of Appeals for the District of Columbia.
Some usage has been scurrilous. Filibusters were particularly effective for southern senators who wanted to block civil rights legislation in the 1950s and 1960s. In fact, the longest Senate filibuster on record was fashioned by the late Strom Thurmond of South Carolina in opposition to the Civil Rights Act of 1957 -- 24 hours and 18 minutes.
During the Great Depression, Louisiana's famously colorful Huey P. Long employed Senate filibusters whenever he thought a bill favored the rich over the poor. He once held the Senate floor for 15 hours, reciting Shakespeare and reeling off recipes for Cajun "pot-lickers."
The rhetoric is heating up over this issue.
Sen. Robert Byrd, the West Virginia Democrat who's considered the best parliamentarian and historian of that chamber, took to the floor last week to unburden himself of a fervid and subsequently criticized speech in which he summoned images of Mussolini and Hitler to predict totalitarian consequences if the conservatives prevail. Without the right of debate, he asked, "what will forestall plain muscle and mob rule? ... We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men."
Byrd even brought in religious allusions: "Jesus Christ was killed by a majority; Columbus was smeared; and Christians have been tortured. Had the United States Senate existed during those trying times, I am sure these people would have found an advocate."
Going to court over the imminent change in filibuster-cloture rules is not a realistic option for the Democrats. Judges traditionally defer to the executive and legislative branches of government when it comes to decisions over internal governing of those bodies. The GOP would welcome a court fight. Conservative senators keep citing a recent article in the "Harvard Journal of Law and Public Policy" by Martin Gold, a former aide to Senate Majority Leader Bill Frist. Titled "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster," this work notes there is absolutely nothing in the Constitution about needing a supermajority concerning any Senate function of advise and consent. It will likely be used as a blueprint by Republicans for changing the cloture rule.
Under Gold's envisioned process, a senator (Republican) could rise to a point of order during extended debate or filibuster over a judicial nominee, and claim further argument would be "dilatory" and thus out of order. If the presiding officer of the Senate -- in important debate likely to be Vice President Dick Cheney -- sustained the point of order, as he would, it would create lasting and binding precedent. That's the way that chamber operates. If Democrats challenged that ruling, it would take only a majority vote -- as it does now -- to sustain a ruling by the presiding officer. Pretty simple power play.
It is possible, of course, that this history-making contretemps can be avoided. But the rabid partisanship and division now afflicting the body politic augurs not well for that desired outcome. Bush's probable triumph in this maneuver may fall under the category of Answered Prayers -- things fervently wished for that turn out bad for the wisher.
Republicans who change the filibuster and cloture rules, predicts former Clinton political guru Dick Morris in The Hill newspaper, "will be undermining their own president and their electoral fortunes for years to come."
The "simple truth," Morris holds, is that Dubya actually needs the threat of a Democratic filibuster on his judicial nominations: "It is only by pointing to the threat of Democratic intransigence that Bush can justify appointing a moderate conservative, instead of a doctrinaire one, to the Supreme Court."
Don't hold your breath waiting for the White House to heed that warning. My guess is if President Bush is reading that passage right now, he's laughing himself silly.
| Niagara Falls Reporter | www.niagarafallsreporter.com | March 8 2005 |