January 31, 2005


Resist the Filibuster Fiat (Kevin Drum, January 31, 2005, Washington Post)

Senate Democrats have relied on filibusters to block judicial nominees far more often than have minority parties in previous congresses. But there's good reason for this: Republicans have steadily done away with every other Senate rule that allows minorities to object to judicial nominees -- rules that Republicans took full advantage of when they were the ones out of power.

Originally, after Republicans gained control of the Senate in the 1994 elections and Utah Sen. Orrin Hatch assumed control of the Judiciary Committee, the rule regarding judicial nominees was this: If a single senator from a nominee's home state objected to (or "blue-slipped") a nomination, it was dead. This rule made it easy for Republicans to obstruct Clinton's nominees.

But in 2001, when a Republican became president, Hatch suddenly reversed course and decided that it should take objections from both home-state senators to block a nominee. That made it harder for Democrats to obstruct George W. Bush's nominees.

In early 2003 Hatch went even further: Senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it could still go to the floor for a vote.

Finally, a few weeks later, yet another barrier was torn down: Hatch did away with "Rule IV," which states that at least one member of the minority has to agree in order to end discussion about a nomination and move it out of committee.

These rule changes aren't a direct explanation for every Democratic filibuster. In fact, some of the filibustered judges have been approved by both of their home-state senators, so they wouldn't have been blue-slipped in any case.

But Democratic frustration is still understandable. For better or worse, the Senate has long been dominated by rules that give minorities considerable power over the legislative and appointment process. The usual justification for this is that it forces compromise and curbs extremism.

When Democrats were in the majority, Republicans defended these traditional Senate rules and used them freely to block judges they had strong objections to. But when they became the majority party themselves, they gradually decided the rules should no longer be allowed to get in the way of unbridled majority power. It was only after Democrats were left with no other way to object to activist judges that they resorted to their last remaining option: the filibuster.

It's arguable, of course, that none of these rules made sense in the first place.

What Mr. Drum has demonstrated here, though unintentionally, is that the rules are always subject to change. Hard to see why they should suddenly be set in stone now, eh?

Posted by Orrin Judd at January 31, 2005 8:16 PM

One can of course point out that originally cloture didn't not exist, and filibusters could continue forever. After that, it went to a two-thirds before reaching the current three-fifths much later.

The reductions came at the same time as increased willingness to filibuster as well, just as these changes are coming with increased willingness to use filibusters against judges.

Drum is completely wrong to suggest that the Republicans "used them freely to block judges that they had strong objections to" when Democrats were in the majority. Judges were barely blocked until Reagan, and Democrats were barely in a majority with a Democratic President Clinton. When Republicans blocked Clinton's nominees, they were in a majority, not a minority. They didn't filibuster, either, being able to defeat certain judges on an up-and-down vote of the whole Senate.

Posted by: John Thacker at January 31, 2005 8:34 PM

The only accurate statement in the whole article is that 'It's arguable, of course, that none of those rules made any sense in the first place.'

Frankly, the advise and consent function of the Senate and arguably the Senate itself has made no sense since the 17th Amendment was ratified.

Posted by: Bart at February 1, 2005 9:53 AM