Nuke ’em, Harry!

Harry Reid has decided that enough is enough, and will move to reform the filibuster by a simple majority. Good for him!

At last, Harry Reid has concluded that the Senate cannot function with an effective 60-vote threshold for confirming nominees, when the his Republican colleagues are using their minority power to undo basic Constitutional processes. Instead of whomping up the usual insincere objections to individual nominees, the Senate GOP has decided that this President will not be allowed to fill any of the vacancies on the DC Circuit Court of Appeals. So he’s going nuclear, and he thinks he has the votes. (The record suggests that Reid is pretty good at counting.)

I’m on record as saying that a mid-session change in the filibuster rule made by simple majority vote is a breach of the Senate rules. So be it. Extraordinary abuses demand extraordinary remedies. A asymmetric political process, where one side respects convention and the other systematically abuses whatever power it has, is not sustainable.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

79 thoughts on “Nuke ’em, Harry!”

  1. Sounds nice, but I’ll believe it when I hear the angry buzzing of the geiger counter. I think it’s likely just a head-fake, and there’ll be some “negotiations” and the Dems will happily accept some empty promises while more precious months of Obama’s presidency melt away.

      1. My Senators are Coburn and Inhofe. One is a true believer who will not change if Hell froze over and the other would have to learn to read first.

      2. I’ve phoned and let staffers for Sens Boxer and Feinstein know what I think. Their staffers didn’t say anything firm.

  2. What’s the extraordinary circumstance? That you’re not getting what you want under the existing rules?

    Why should anybody take seriously a commitment to the rules that gets tossed aside any time the rules don’t produce the outcome you want? The test of your commitment to follow rules isn’t the occasions when you can prevail under them, it’s the occasions where you can’t.

    Here’s an alternative suggestion: Obama could nominate people capable of getting 60 votes. Such people do exist, I presume. They’re probably not much to your liking, though.

    The real problem here? Republican and Democratic ideas of the proper role of the judiciary used to be different, but overlapping. There were a large pool of candidates in the middle, which, while neither side really preferred them, were acceptable to both sides.

    Today, the Republican and Democratic conceptions of what judges are supposed to do aren’t just different, they may be disjoint. Each side’s view of acceptable judging constitutes the other side’s understanding of malfeasance.

    That’s a change no voting procedure can erase, only paper over.

    And, Mark? If we were talking President Romney, and a Republican Senate majority? Would the circumstances be extraordinary then?

    1. Get real Brett. The Republicans want to control the judiciary. Thus, the only nominees who would be acceptable to them are nominees who share their ideology. And remember, the fight over the D.C. Circuit is not a fight over the identities of the nominees, all of whom the Republicans agree are qualified. Rather, it’s an attempt by the Republicans to maintain the ideological status quo on that court.

      1. Republicans no more, and no less, want to control the judiciary, than Democrats. There’s what you want, what you’ll settle for, and the line in the sand where you go nuclear.

        There have not been, for a long time, many judges both sides wanted. There used to be a lot of judges both sides would settle for.

        But now, the lines in the sand have moved, on both sides, and there’s only a no man’s land between them. That’s the real truth.

        You can, as I say, paper that over with voting rules that allow either side to win with a smaller majority. But this isn’t an extraordinary circumstance, it’s the new normal.

        And it’s no less going to be the truth when you lose the Senate, and face a Republican President. So, if Reid goes nuclear, better be prepared to eat your fallout in a few years without griping.

        1. “What’s the extraordinary circumstance? That you’re not getting what you want under the existing rules?”

          That the GOP has redefined ‘court packing’ to mean ‘the president having judicial nominees confirmed’.

        2. “…better be prepared to eat your fallout in a few years without griping.”

          It’s a sign of how extreme Republicans have become that long-time senators like Harry Reid and Pat Leahy are even considering mid-session reforms of the filibuster rule.

          As for the “extraordinary circumstance”, it’s that Senate Republicans are filibustering routinely nominees for no reason related to their record.

    2. So when the Senate be equally divided, the President Pro Tem casts the 61st vote?


    3. See, it’d be one thing if the Republicans were just opposing these nominees though, but they’ve outright said that they will refuse any nominee Obama picks. Their argument is that the Court is underworked and doesn’t need any more judges (although they sung a different tune when Bush was in office).

      There is no nominee that they would accept. They will refuse any possible nominee simply because Obama supports them. Like, they aren’t even hiding it in this case.

      If Romney won and we had a Republican Senate, the Democrats should have used the filibuster to block judges that seemed particularly out of the mainstream. They could use the filibuster to try to make it so moderate conservative judges got nominated. It would be wrong to say that Romney would never be able to fill those seats.

    4. So the net effect if the D’s and R’s can’t find any common ground is that no judges get confirmed at all?
      That surely can’t be the original intent. (and I will remind the gallery that the D controlled Senate did approve many of GWB’s judges, albeit grudgingly.)

      When does ‘advise and consent’ turn into ‘veto and dictate’?

      1. Once the nihilists took over the GOP. Once they stopped being about something (even if those things were silly) and started opposing, on principle, any appointment made by a Democratic president.

    5. If we were talking President Romney and a Republican Senate majority?

      I’m assuming you mean this question rhetorically – but it doesn’t matter, because real life provides an answer. Does the name “Samuel Alito” ring any bells?

      1. Alito…Alito…that sounds familiar. Arch-conservative judge? Democrats didn’t much like him, and raised a bit of a fuss, but ultimately they permitted a vote and he was confirmed, because despite his ideology he was qualified, and a president gets to nominate judges that reflect the ideology on which he was elected?

        That guy?

        1. I seem to recall that a few Democrats even voted for him.

          And wasn’t there another guy around the same time, too? I think his name was “John Roberts” or something? Oh, and another one, whose withdrawal from consideration was advised after it became apparent even to the president’s own party that she was disastrously unqualified? “Harriet Miers”, I think it was?

          1. Yeah, I remember a handful of ours voted for him. I remember not liking him much at the time, but what are you gonna do? We lost the election. A President gets to choose judges that suit him, and when you’re in the other party, that’s gonna suck sometimes.

            For God’s sake, we had to accept Clarence $*&^! Thomas as a replacement for Thurgood Marshall. Let’s all remember that when some current or future Democratic president is called upon to replace one of the aging arch-conservatives. We’ll hear a lot of caterwauling about “preserving the balance” and the only answer is to spit “Clarence. Thomas.”

    6. You mean the fact that the GOP voted down three nominees for a court because they believed that court had enough justices already? Sure, it’s an 11-judge court with 8 judges sitting, but the Senate Minority feels it should only be an 8 judge court.

      That’s their stated rationale. They’re calling it “court packing” and objecting to that, not the nominees credentials, ideology, judicial philosophy, records or even personalities.

      They’re decided filling in vacancies on that court is ‘court packing’ and are using the filibuster to block it.

      How is that an ordinary circumstance?

    7. Obama could nominate people capable of getting 60 votes. Such people do exist, I presume.

      Bad presumption. There seems to be no one Obama could nominate, including Solomon himself, who would not be filibustered.

      1. Of course there are people Obama could nominate the GOTPers would vote for. The problem with them is that our side would filibuster nominees of the Alito/Thomas/Scalia ilk. The proper statement is, “There are no people Obama would nominate who could get 60 votes.”

        Brett (like a blind pig) occasionally finds an acorn of truth — with the current gulf between the parties there is only a No-Man (or Woman)’s-Land in terms of nominees. I’ll note here that Obama’s nominees have uniformly been moderates. In itself, that is a serious indictment of the GOTP’s attitude.

    8. I’m not surprised that a member of the party that was crying less than a decade ago that every judicial candidate deserves a straight up-or-down vote is now defending a tactic designed specifically to prevent straight up-or-down votes, because they know they’ll lose those votes. Never change, Brett.

      1. The bigger issue isn’t that they were crying for up-or-down votes. It’s that they took the position that filibustering judicial nominees was unconstitutional. That raises the bar on proper behavior dramatically.

        Doing something that you believe is unconstitutional is a much bigger deal than just doing something that you think ought to be prohibited. The overwhelming percentage of the Republicans have engaged in behavior that they have claimed violates their oath of office. If they put so little value in that oath, why should anyone trust them at all?

        And can anyone go back and find out whether Brett was saying on this subject back in 2005? I have a suspicion that he’s defending what he has claimed are constitutional violations but I haven’t come up with search terms that shed any light on the matter.

        1. That’s a great point, I had forgotten that they had claimed that it was literally unconstitutional.

          I wouldn’t know how to begin to discern Brett’s thoughts on the matter eight years ago, although you might find fruit by limiting your search to certain sites where he was a regular commenter at the time. In any case, when the question “Is Brett engaged in an act of rampant hypocrisy?” arises, I find you can’t go wrong by assuming “Yes” until shown otherwise.

    9. Don’t give us the guff about “commitment to the rules”, something that has been utterly lacking
      on the Republican side ever since Gingrich/Rove/GW Bush. Yes, we’re changing the rules. So what ?
      The Senate has a constitutional duty to give “advice and consent” on a large number of
      appointments to executive and judicial positions. Republicans have been blocking perfectly
      reasonable nominees on spurious grounds, in an attempt to nullify legislation and block policies,
      even after they’ve lost a sequence of elections. In the particular case of the DC circuit, Republicans
      have made it clear that they’re going to block any and every nominee on the grounds that the
      circuit is overstaffed and underworked. But that isn’t for them to decide – the vacancies exist,
      the nominees are highly qualified and ideologically mainstream, and supported by a majority of the

      Furthermore, we used to have a safety valve for executive appointments in the form of
      temporary recess appointments. But the rather weird decision of the appellate courts to
      greatly restrict the recess appointment power, ignoring the interpretation which had been
      accepted for decades, has left Obama and McConnell with a stark choice: change the Senate
      rules to allow “advice and consent” to proceed; or to fail to faithfully execute the law.
      I wish they hadn’t been forced to that choice. But since they have, changing the rules
      in a way which upsets 45 or old white guys (and a host of pundits), is a necessary evil
      to preserve the principle that the President is allowed to govern and make appointments
      and execute the law.

      By all means, go ahead and win some elections if you want to change the rules back, or
      get different nominees.

    10. As many filibusters in Obama’s presidency as in the entire preceding history of the Republic. Pretty extraordinary, pretty abusive.
      But I understand where you’re coming from. Trolls be trollin’.
      Also, when things were on the other foot, the R’s threatened the nuclear option and then everyone worked out a deal. McConnel promised at the start of the term not to filibuster everything, and he lied. No credible partner on the other side.

  3. I’m with you on this now Mark.
    The chances of the Republicans recapturing the Senate are growing dimmer by the daily demographic.
    Pretty soon (any god damn day now) I suspect the media will actually start talking about the millions that are grateful for Obamacare…
    (Hint: the gazillion baby boomers between 62 and 65 years old.)
    And Republican prospects will grow dimmer yet.

    And of course we have President Hillary Clinton in the queue…
    So this looks like win-win politics and social engineering to me.
    Go for it.

  4. Thomas Babington Macaulay on the consequences of endless provocation of decent temporizers like Harry Reid:

    Spare us the inexpiable wrong, the unutterable shame,
    That turns the coward’s heart to steel, the sluggard’s blood to flame,
    Lest, when our latest hope is fled, ye taste of our despair,
    And learn by proof, in some wild hour, how much the wretched dare.

    BTW, Brett, you really think the next Republican majority in the Senate (which God forbid) would not immediately kill the filibuster?

    1. Did the last? The Republicans are less prone than Democrats to the triumphalist conviction that their latest majority will be eternal, having spent more time in the minority. They’re not like the Democrats, who every time they lose a majority are utterly shocked.

      1. the republicans weren’t forced into this situation by the democratic party. bush even managed to get janice rogers brown on the bench. obama would have to nominate someone to the left of bernie sanders to have an equivalent nominee. i weep at the center-right moderacy of the nominees obama has put forward but it is his prerogative and those are his choices. are you, mr. bellmore, telling us that those choices are unqualified for the job? are you saying that a president has only the discretion that the republican party chooses to allow?

        1. “are you saying that a president has only the discretion that the republican party chooses to allow?”

          Well, you know, only Republicans can legitimately hold office. Democrats are usurpers who hate America and want to destroy it, and thus can’t be allowed to govern even if they manage to have ACORN fake enough votes to steal an election.

        2. This. Janice Rodgers pretty much proves that the Dems are far, far more, and were far, far more accommodating than the Republicans. That’s why they didn’t have to abolish it. The Dems cared about comity, majority rights, etc.

      2. They only didn’t because the threat of doing so made the Democratic leadership back down. If it wasn’t for that, I’d be leary of it, as well, but this simply doesn’t hold for both sides.

      3. “The Republicans are less prone than Democrats to the triumphalist conviction that their latest majority will be eternal.”

        LOL. This from the party that was going ’round talking about the “permanent Republican majority” about 10 years ago. Please.

        The GOP has finally rachetted these tactics up to the point where the temporizing, cautious Dems are willing to pull the trigger on the “nuclear option.” As Mark said: so be it. I understand the consequences when the GOP has power again. I think the ability to get normal judicial appointees confirmed is important, and I don’t believe for a second that if the GOP was facing Dem obstruction like this that they’d hesitate to go nuclear (they threatened it in the Bush years, and the Dems backed down).

        1. It’s pretty hard for me imagine worse judges than Clarence Thomas and Samuel Alito.
          Since a sufficient number of Democratic senators have always been willing to
          give the benefit of the doubt to nominees – AG Alberto Gonzales!! I really can’t see
          that changing the 60-vote threshold makes any difference to the outcome in the
          hypothetical future where Republicans hold the White House and the Senate.

          As for McConnell’s threat about further changes, it’s pretty absurd. “It’s terrible
          that you’ve limited the filibuster, which was so wonderful, and my response will be
          to eliminate it altogether if I get the chance”. WTF ? Is anyone over there
          remotely interested in sounding like a rational human being ?

          Anyhow, I expect the most damaging parts of the Republican agenda – Ryan’s
          steal-from-the-poor-and-give-to-the-rich policies – would be shoehorned into
          the budget reconciliation procedure, so even there I don’t see that Democrats have
          anything to lose. Now the stakes are clear for 2016. Full speed ahead and
          damn the torpedos!

      4. “Did the last?” answers the question, but not in the way you intend. You’re confusing position with velocity. You mean to suggest that since the last Republican senate didn’t eliminate the filibuster, the next won’t. Reasonable people suppose that since the last Republican senate violated several long-standing norms, the next is likely to do the same. The filibuster is next in line. They flirted with ending it last time around, and only relented when the Dems caved and voted to confirm Alito, and if the filibuster can’t be used to prevent an Alito, what good is it anyway?

        Why not kill the filibuster? It’s an effective weapon in the hands of Republicans and utterly useless in the hands of Democrats. If Republicans think the filibuster is so great, they should have given a little thought to making it valuable to the other guys as well. Their scorched-earth tactics were fun, but it’s possible that even a bunch of spineless clowns like the senate Democrats will eventually figure out what’s going on. I doubt it, but it’s possible, and I’d be worried if I was a GOP senator.

        1. Not a fan of the last Republican senate, but not sure what the “several long-standing norms” are to which you’re referring.

          Could you specify them?


  5. This is one of the rare cases where “both sides do it” actually applied. Before Clinton, Presidents could generally get their judicial nominations confirmed, with the other party only opposing a candidate if they were genuinely crazy (like Bork) or personally obnoxious (Clarence Thomas sexually harassing Anita Hill).

    Republicans obstructed Clinton’s nominees by any means available, and the Democrats responded in kind against Bush. When the Republicans had the Senate majority after 2002, this meant wholesale filibusters. The Republicans threatened the nuclear option, and the result was a series of deals culminating in the Gang of 14 deal which gave the Republicans 99% of what they wanted. I suspect Reid is looking for the same outcome.

    1. “Wholesale filibusters” is a serious misstatement to describe Democratic senators’ behavior during the Bush Administration. In fact, very few nominees were filibustered, and in each case the arguments were about the specific nominees. None were open attempts to play the political balance of the court, as Republicans are now doing with the DC Circuit.

      1. Yes. They weren’t based on the premise that the President simply had no right to fill those seats at all, with anyone.

    2. I would add to Jonathan’s comment the observation that Bork was defeated (easily) by a straight majority vote. At the time I was an intern at People for the American Way, which was at the heart of the anti-Bork campaign. While there was talk of trying for a filibuster if Bork’s opponents couldn’t get 51 votes, this strategy was quickly rejected, as there was no serious support for it in the Senate. Times have changed.

      1. Yep–hugely important. Neither Bork nor Thomas were ultimately filibustered. Both of them got an up or down vote. And Clarence Thomas, you will notice, was confirmed! Voting _against_ a nominee isn’t “obstructing the process.”

        1. Yes. Bork lost, 42 votes in favor of confirmation, 58 nays. A straight vote, and he lost by 16 votes.
          Even Bork only needed 51 votes (really 50) to be confirmed, unlike the ‘new rule’ of 60.

          1. And Thomas was confirmed 52-48. Had he needed 60 votes, he’d be working for the Heritage Foundation or some other dispenser of wingnut welfare.

  6. I agree that the bad faith displayed by the Republican senators here is astonishing — they made the exact same argument about DC Circuit nominees during the Clinton Administration and then after Bush took office, even though the court’s workload had gone down, went to the wall to get Bush’s nominees for those same vacancies confirmed. Claiming, repeatedly, that filibustering judicial nominees was improper and unconstitutional, and promising that they would never ever ever filibuster a judicial nominee even of a Democratic president.

    But I can’t support blatant rule breaking in response.

    It was a mistake — a huge mistake, in my opinion — to relent and allow Judge Brown to be confirmed. This mistake can’t be undone, but it’s possible to decide not to repeat it. It was a mistake — a huge mistake, in my opinion — to let McConnell off the hook based on whatever assurances he gave Reid at the beginning of this Congress when the rules could have been amended properly. This mistake cannot be undone either without making the rules purely optional.

    1. they still won’t confirm any Obama judges.
      Or any Cabinet positions, for all I know.

      So fill the slots while you can, boys.

  7. Good news if it happens. Reid and Durbin have been fuming about this for years now, so I’m not exactly holding my breath. Why?

    I’m not as sure about the demographic determinism that this is the Dems’ time to take this move with little fear that the Reps will gain the upper hand again. Both parties have shown themselves much more adept at demobilizing and alienating voters than in motivating them to turnout, which always benefits those who an count on the rabid Republican vote. The reason the Reps do this is obvious. They’re a minority party and have been for some time. They still win elections, though. Why? The Dems are more afraid of alienating their corporate backers than they alienating their supporters, who’ve let them get away with that up to this point.

    Unless the Dems really do start meaning half the stuff they say and making sure they do enough about it to get their voters to the polls regularly, the Reps may end up taking their revenge. All it takes to keep voters away from the polls is lots of money for political discouragement to be spread far and wide in an election. And the Reps will still have plenty of that.

    I’ll go fix some popcorn. This could get interesting if Reid gets out of bed with a little gumption one morning.

    1. I think the truth is, they’re both minority parties. They’ve just rigged the system so that no party that might win the allegiance of a majority of the population is permitted to replace them.

      The Democrats have a relative advantage, in that they have the loyalty of the greater part of the media, and so the Republicans are constantly running against a media “headwind”. In part this is compensated by the fact the Democrats have lost any capacity they once had to govern competently; Whether the public would like a European style welfare state competently administered, they clearly are losing their taste for an incompetent one.

      But, so long as the system remains rigged, it’s not a question of who is more popular, but just who has most recently frightened the electorate the most.

      1. Brett wrote:
        “Whether the public would like a European style welfare state competently administered, they clearly are losing their taste for an incompetent one.”

        I would say they do want something that resembles a competent “European style welfare state.” But this is not what the Democrats are offering, just Capitalism-Lite, which of course is preferable to The Jungle, the other traditional flavor on offer (which now comes with new Tea Party Crunchies at no extra cost.) So I suspect you’re strawmanning this one a bit. Just speaking as an actual socialist, that is.

        The Reps seem to believe that obstructionism is the same thing as convincing the public that the other party is incompetent. If they’d been a tad more clever about that, they just might have pulled that off. As it is, lots of folks are saying a pox on both houses. As I’ve already observed, that draw tends to go to the Reps, because rabid tends to win over reasonable in the US at this cultural moment. We shall see, I guess. Let’s put it this way, I’m not planning for “after the revolution” any time soon, Brett, so you can unlock and unload if nothing else is worrying you this afternoon. Let’s have a beer…and a doobie.

        1. They weren’t successful at obstructing the ACA, and I’m guessing that a fair number of Democrats are now wishing they had been, because there’s a nice display of Democratic incompetence going on right now.

          1. Enjoy it while you can, Brett. 6 months from now the ACA will be insuring a
            lot of people at affordable subsidized rates; 5 years from now it will be
            very popular; 10 years from now it will turn out that it was all Ronald Reagan’s
            idea, and candidates of both parties will swear to preserve it along with
            Social Security, Apple Pie, Motherhood, and the Stars and Stripes.

            On the scale of incompetence, launching a buggy healthcare website doesn’t match up to
            mounting a huge and bloody invasion and decade-long occupation of the wrong
            damn country …

  8. Wouldn’t forcing actual Senate-floor filibusters — rather than secret holds — be enough to rein in this behaviour?

    1. I doubt this. The leverage a majority has by forcing actual endless debate is that it prevents anything else from coming up, presuming that the filibustering senators have some sort of legislative priorities in addition to preventing particular nominees from getting an up or down vote. I don’t think this can be said of the current Senate minority.

      Would McConnell and his guys be sorry if all they could do is spent 24/7 berating the President?

    2. A so-called “actual filibuster” is even harder on the frustrated majority than is acquiescence to a filibuster threat. Given an “actual filibuster”, the obstructing side would have to have one Senator present and willing to object to closing the debate and starting the vote (two senators to allow for redundancy, so one can go to the restroom); the side desiring cloture would need to have enough senators present or close to hand to satisfy a quorum call (fifty, if I remember correctly), or else the bill or nomination would dissolve into the ether and would have to start over. So: requiring “actual filibusters” would burden the wrong side. It would also prevent any action in Senate committes (all committees) and obstruct any other business the Senate might in theory be capable of still getting done.

      1. That’s why my minimal change to the filibuster is to require 40 votes to sustain it, instead of 60 votes to break it.

        Make 40 minority members camp out in the Senate chambers not doing anything else, while a single person from the majority wields the gavel. If someone leaves without a replacement arriving, call a vote and the filibuster is over. Meanwhile, the remainder of the majority is going on TV talking about the obstruction, campaigning, attending committee meetings, spending time with their families, sleeping, whatever.

        If you would be stuck listening to Senators speak for days on end, how willing would you be to join in a filibuster, unless it was vitally important?

        1. The obvious objection is that the filibuster is just an exercise of the right to debate, and you’re trying to change it so that no debate occurs. You want to spare the majority the tedious necessity to actually listen to the minority.

          Granted, you can filibuster by reading the phone book, and this is an abuse. But you can also filibuster by saying relevant things.

          I think that latter is the main reason the “actual” filibuster was dispensed with. The legislative majority hates giving the minority a public, dramatic opportunity to explain its position. They might, horror of horrors, prove persuasive! Better to just move on to something else, until you can schedule a nice, debate free opportunity to have a vote.

          1. Except that opinion is blatantly counter-factual; the filibuster mechanism is being used to effectively require 60 Senate votes to do *anything*. Even in its platonic ideal, Mr. Smith goes to Washington kind of use, filibuster isn’t about the ability to express an opinion, but about the ability to continue talking afterwards.

          2. Brett, have you ever watched what passes for discourse in our media and government?
            It’s not debate, it’s talking points passing each other like ships in the night.

          3. You’re talking about a “right” to debate on the floor as if it were some sacred Constitutional obligation. It ain’t; it’s a convention, no more. The real right to debate is the one that we are exercising right here.

            The talking filibuster was dispensed with for reasons of efficiency. No other reason. Nobody is silencing Ted Cruz – the glory of the First Amendment is that Ted Cruz can take a public opportunity to explain his position anytime he wants, and he can make it as dramatic as he likes, and he does not need the Senate floor to do it. The only thing the talking filibuster adds is the ability to hold up the rest of the people’s legitimate business. Nobody cares what Ted Cruz (or Wendy Davis) has to say after the first ten minutes or so, and there is all kinds of actual work that needs doing in the meantime.

            Indeed, if the goal was to take away the tedious necessity of listening to the minority, then it was an abject failure, since obviously we hear from them virtually every day whether we want to or not. In fact, every couple years we’re treated to several months of hearing from them every ten seconds on TV. Dramatically, even! With pulse-pounding music and visuals! And funnily enough, most of us find ourselves not persuaded but repulsed. From where I’m sitting, a talking filibuster is just an overgrown campaign ad – nothing but another symptom of our sick political culture. You want a real debate? Elect politicians who will do the people’s business, and then we can have a sane conversation about said business, and we won’t need stunts to do it.

          4. You guys are being far too generous to Brett by taking this objection seriously:

            The obvious objection is that the filibuster is just an exercise of the right to debate, and you’re trying to change it so that no debate occurs.

            No, Brett, you’re lying. No one is saying that there should be no debate. The House doesn’t have cloture rules at all and that doesn’t seem to have prevented all debate within the chamber. What people are saying is that there shouldn’t be unlimited debate on a topic.

            It would be nice if you didn’t perpetually misrepresent what people say, but I’m not holding my breath.

          5. in the comments to a post about the filibuster rule at the volokh conspiracy mr. bellmore is suggesting that the obama administration might cause scalia’s death and supports that assertion by saying ” or even be made to happen. (In one of those “Will nobody rid me of” moments that seem to abound in this administration.)” it is exceedinly hard to take him seriously given the remarkable things he has written here and apparently elsewhere.

      2. That’s true, but in the aggregate, threatening to filibuster is pretty much cost-free these days. That brings exactly the distortions one would expect.

        1. J. Michael Neal–it’s even worse than you noted. The reform that Senator Merkley and company have proposed is that to have a filibuster you actually have to debate. What they do now is just say they intend to filibuster and then the nomination or legislation ends up in limbo.

    1. Odm says:
      “It’ll all end in Mutually Assured Legislation.”

      Yeah, that’s when it really get scary. When the politicos decide they can gang up on the rest of us. That when things get ugly. NSA. Constant war. “Reforming” Social Security. “Affordable” Care Act. “Free” Trade…

    1. Oh good, are we about to launch into another 50-comment thread about the implications of the Fourth Gospel for designing legislative procedures?

  9. Well, it is done. Jim is right the Republicans would have utilized the option once they got their hands over the button. Alas, if only we did this for legislation back in early 2009. We would have had a likely more liberal healthcare reform, immigration reform, and perhaps climate change legislation.

    But at least we will have a more liberal judiciary for 10 years and a more liberal administrative capacity for the next 3 years…


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