(BORING GOVERNMENT ARTICLE ALERT! If you are frustrated to tears with governmental inner workings, skip this and read something funnier.)

The U.S. Senate is in a tizzy. Well, more accurately, the Democrat senators are in a tizzy. You see, the President has the Constitutional responsibility to select people to fill roles in the judiciary, but the judges need to be passed to the Senate for “Advise and Consent.” It only takes 51 votes of the current 100 senators to confirm the nomination. That’s all it takes, and the Constitution is mute about the need for more than a simple majority to confirm a judge. There are other instances in the Constitution that require more than a simple majority of the Senate. Amendments, treaty ratifications, and impeachment convictions are three examples of votes requiring more than a simple majority. The passing of a law, as well as the confirmation of a judge, only requires a simple majority–51 votes.

Some things don’t appear in the Constitution which are part of the internal rules and procedures of the Senate. A classic example of this is the motion of cloture. Members of the Senate may debate about the nature of a bill before them and, normally, speak for as long as they wish. To move from this discussion phase to an actual vote requires a procedural act of the Senate and the agreement of 60 senators. When a motion for cloture is proposed, there are some limits imposed upon the senators about the bill. Each senator may only address the Senate twice about the bill in question, and each senator may only talk for one hour in total. There is also a 30-hour limit imposed. Once the 30 hours have passed, the vote on the motion of cloture is taken. If there are 60 or more votes, the bill may be actually voted on. It then requires only 51 votes to pass the bill.

Another particular aspect of the Senate workings is the filibuster. A senator may stand and discourse on the subject at hand, or on any other subject he chooses. In fact, if he follows the rules of debate, he can talk for as long as he is able to do so. At times when a band of senators are riled up enough against a bill, they could gang up to drag out the Senate procedures to delay a bill or even prevent it from being voted on altogether. This fit with the Senate idea that any senator could stand and talk about any subject: favorite recipes, quotations from the phone book, your dog Billy, or even the bill at hand. In the 1930s, Senator Hugh B. Long used the filibuster to delay and stop many bills with his recipes and readings from Shakespeare. His longest filibuster lasted 15 hours. The longest filibuster on record is held by Senator Strom Thurmond, who held the floor for 24 hours and 18 minutes when debating against the Civil Rights Act of 1957.

But the most famous filibuster of all time didn’t happen in the Senate. It isn’t even real. It comes from the Frank Capra movie Mr. Smith Goes to Washington, where Jimmy Stewart pleads passionately to his colleagues, talking himself hoarse as he stands alone against the rest of the Senate. The movie suffers from one factual goof–it couldn’t have happened that way. Back in 1917, the Senate adopted Rule 22 that allowed for a motion of cloture to stop a filibuster if enough votes were gathered. The days of a lone senator being able to stand up, blather on, and stop the rest of the other senators from proceeding were gone with the adoption of that rule. Since 1917, the Senate rules about debate have changed many times. What do the filibuster and the motion of cloture have to do with the Constitution? Well, actually, neither one appears in the Constitution as they are both part of the internal rules voted on by the Senate for its own purposes.

Why do I bring this stuff up? Because many Democrat senators are currently riled up over a proposed change to the Senate internal rules. To put it simply, it takes 60 votes to pass a motion of cloture, but only 51 votes to pass a bill or confirm a nomination. The new rules would apply only to judicial nominees. It would still require the 51 votes to confirm that person, but it would make it easier to pass a motion of cloture. The first motion would still require the 60+ votes. The next would require less, and the next even less. I believe it is the fourth motion of cloture for a nominee that requires only 51 votes to pass. And at that point, the vote for the nomination could proceed. This proposed change in the rules has been called the “Nuclear Option”–a poor choice of words. The change is being proposed because the most important judicial nominees have consistently been held up by Senate Democrats. With the possibility of multiple Supreme Court positions to be filled in President Bush’s last term, the Democrats don’t want to make this process any easier for the Republicans.

On March 16th, moveon.org held a rally with several Democrat speakers (full transcripts here). Senator Robert Byrd of West Virginia said the following:

An ill wind is blowing across this country. That wind sows the seeds of destruction. Our Constitution is under attack. We must speak out. We must kill this dangerous effort to rewrite our precious Constitution. Your freedom of speech is in jeopardy. Your freedom. My freedom of speech is in jeopardy. Some in the United States Senate want to bully the American people and the Senate and force feed us far right wing judges. We cannot let them do it. Don’t let them do it. Speak out. Tell the people. Get the people. Get the people. We cannot let them do it. Their view of the Constitution is based on the opinions of a fancy Washington law firm. Our view, your view, of the Constitution is based on the plain words of the framers who wrote that Constitution.

The opponents of the filibuster, the opponents of freedom of speech, say that we don’t need 217 years of American history. Oh no. According to the opponents of the filibuster, 217 years of history is a bore. It’s simply passe. Old hat. Well they say the Constitution is stale bread. The opponents of free speech see no need to rely on Jefferson. To rely on Franklin. To rely on Madison. To rely on Hamilton. They want to nuke. Nuke. N-U-K-E. They want to nuke debate in the Senate, and stand the Senate rules on their head.

I find it interesting that a Democrat would call for “plain words” to understand the Constitution. It really isn’t that hard to understand, but it is a pity that the Supreme Court doesn’t agree. They have been ignoring what the Constitution says, relying on the opinions and laws of other nations to make some of their recent decisions. But what Senator Byrd failed to say was that he, himself, led the charge to change the filibuster rules four times when he led the Senate. So much for 217 years of history.

Senator Hilary Rodham Clinton claimed to be able to read the minds of her Republican colleagues, and messed up a movie reference for good measure:

You know, I serve with a lot of Republican Senators with whom I have worked. Some much to my amazement, to tell you the truth, that I am working with, on issues that are important to New York and America. I know that a number of them have serious doubts about the wisdom of this. They know kinda deep down in their gut this is not a good thing to do. To upend the way the Senate has operated, just because you can for sheer political power? For partisan advantage? To basically end minority rights? To go ahead and consign Mr. Smith Goes To Washington to the dustbin of history?

I have already pointed out that the unlimited filibuster died in 1917, but that doesn’t stop people like Senators Byrd and Clinton from pretending otherwise as they talk about Frank Capra’s fictional movie and the equally fictitious claim of 217 years of unchanged filibuster history. But Senator Barbara Boxer really takes the cake as the senator who speaks the plain truth about what the Democrat senators have been doing.

Why would we give lifetime appointments to people who earn up to $200,000 a year, with absolutely a great retirement system, and all the things all Americans wish for, with absolutely no check and balance except that one confirmation vote. So we’re saying we think you ought to get nine votes over the 51 required. That isn’t too much to ask for such a super important position. There ought to be a super vote. Don’t you think so? It’s the only check and balance on these people. They’re in for life. They don’t stand for election like we do, which is scary. [emphasis mine]

So much for the vaunted Constitution and history! Senator Boxer thinks that the judicial nominees with whom Democrats disagree should require 60 votes instead of the Constitutional 51, solely because Democrats want it to be the case. Listen closely–you can hear the Democrat cry of “Waaah! We’re not in power!” wherever you live.

The judicial farce surrounding the Terri Schiavo case has shown a desperate need for judges who understand the Constitution. When Congress passed the bill that President Bush signed into law, telling the federal courts to look into the Schiavo case de novo, rather than doing what Congress had the authority to tell them to do, the judges went against the will of our elected representatives. America needs judges that will look at the Constitution and base their decisions on what it says–not what they think it says, or what they think it ought to say, or what other people in other countries think, but what the text actually says. Sadly, it appears there are not enough senators with the necessary backbone to make the “nuclear option” a reality. This means that the Democrats will be able to continue slowing down the process of swearing in important judges, just because they disagree with them.

Addendum (5/26/2005): The Republicans and Democrats have reached an agreement that has put aside the nuclear option. I wish the Republicans could have held together, but some squishy types failed to come through for the party. Democrats promise suggest that they won’t mount a judicial filibuster unless there are extraordinary circumstances. But they don’t state what those are. Anyone taking bets on how long the Senate goes before the Democrats threaten to filibuster another nominee? Cox and Forkum do a good job of outlining what “extraordinary circumstances” means to Democrats.

Leave a Reply