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Why they went "nuclear"

I have been watching the Senate floor with more attention than I paid since I worked there, but haven't really had much to comment that I haven't said already.  But Senator Gordon Smith of Oregon (one of our old favoriteshere at The Decembrist) said something interesting:

"I estimate that half of what we do here cannot be filibustered," he said, referring to the vast quantity of legislative work that is driven through the budget reconciliation process, where debate is strictly limited.

That's not a particularly persuasive argument for the raw exercise of power that is the nuclear option, but it does raise an important point that I touched on once before. I believe that one reason -- not the only reason, but an important one -- that this particular fight has become so bitter and so polarizing is exactly that fact, that so much of the Senate's business is now run through the rubber-stamp, party-line process of budget reconciliation. (Including pure policy decisions whose budget impact is incidental, such as opening the Arctic National Wildlife Refuge to oil drilling.) Much of the rest is pushed through using the bizarre technique of rewriting legislation from scratch in small, tightly controlled conference committees, and then forcing the Senate to pass it or not, without amendment.

The result of this trend under which half of the Senate's business is pushed into these rubber-stamp categories is that the small amount of business that remains open to the debate, amendment, and the filibuster -- nominations and a few policy issues -- become more and more bitter. They become the outlet for all the frustrations and resentments of the minority on the other issues. And because most of the business of the Senate is pushed through on party lines, Senators don't develop the habits of forming long-term, cross-party alliances, compromises, friendships, and mutual respect.

And nominations are a terrible platform for developing those alliances because they offer so little room for compromise. You can't amend them or modify them. The only compromise is to take a large number of nominations and agree to some and not others, which is a very limited option and doesn't give much play for creativity.

Steve Clemons recently made a similar point: "If the Republicans actually win the battle on judges, Democrats will never yield on Bolton. They will filibuster forever on his nomination -- and time buys even more potential Republican defectors who are uncomfortable with the high-handed tactics of the White House."

Indeed -- the more subjects are takes off the table of open debate, the greater the pressure and the displaced resentments that come to bear on the few things that remain on the table.

If someday the Senate wants to defuse the nuclear attitude -- the Cold War brinksmanship -- of the institution, one way to do it would be to take Smith's point very seriously. Stop using the budget process for "half of the work we do here," reform it and require it to be used only for the very narrow purposes for which it was intended. When people have to work together and find new alliances, the Senate will become the Senate again.

Posted by Mark Schmitt on May 19, 2005 | Permalink


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Excellent point. The parallel between the current attitude in the Senate & Cold War brinksmanship is incredibly apt, though this is the first time i've read it anywhere.

So as a way of defusing that atmosphere, what would you think of a compromise on judicial nominations that said, fine, judicial nominations can't be filibustered - but they'll need 60 votes to pass? Just convert the implicit supermajority requirement into an explcicit one. Everyone gets the much-prized "up or down vote", and the minority can still block nominations of judges on whom they are united in their disagreement. Because it's generally harder to get somebody to cast a vote against a nominee, as opposed to an obscure procedural vote that has the same impact, there would likely be a lot of situations where it would actually be easier for the majority to get the votes than it is today - especially in those cases where the reasons that a few swing Senators would prefer to vote against the nominee are bad ones that would not stand up to public scrutiny. In other cases, where the nominee draws strong minority opposition due to their extreme judicial philosophy or other attributes that the Senators would go on the record to oppose, there'd still be a way for the minority to withhold a lifetime judgeship.

Hopefully, as a result Presidents would be forced to nominate centrist, well-qualified judges - the absurd notion that best & easiest way to mollify your party's extremists is to give lifetime judgeships to the radicals of their choice would at last go by the boards. And extremists in either party who have turned the judiciary into a battleground will have to find other battles to fight. All around it seems to me it would be good for the Senate, good for our politics, and good for jurisprudence.

Posted by: Tom | May 19, 2005 4:50:45 PM

lots of interesting points. i wonder if they could work out some more rational rules after all this blows over, without the majority at the time (whenever that may be) being short-sighted and small-minded about it.

the recent tactic of sneaking unrelated stuff through on must-passes is especially filthy.

Posted by: Jami | May 19, 2005 5:33:42 PM

Lucid excellence in detail and argument, Decembrist. A few random thought:

Compromise is the lost art.

Her we may lose more than just the right to filibuster.

Posted by: The Heretik | May 19, 2005 5:55:52 PM

Fine post, Steve. This current battle in the Senate is indeed only the latest manifestation of the 'nuclear' or 'cold war' politics which has been ascendent since 1994. The hounding and impeachment of Clinton was also the 'nuclear option', as was the government shutdown, as was Bush v Gore (IMO), as is the shocking practice of the - well, 'bizzare' is the right word for it - 'mark ups' and tack-ons, etc. How do you deal with an insurgency like this?

I too have watched a lot of CSPAN 2 in the last couple of days, but there's only so much I can take - I'm getting chest pains and a sore jaw from teeth-grinding..oh wait, 'Whizzer' Allen has the floor....

Posted by: jonnybutter | May 19, 2005 8:52:45 PM

As a process guy (not political), I'm curious if the changes might have something to do with complexity.

Are things just too complex for most senators to get bogged down in the details these days, while a committee has a fighting chance of sorting through the details (or perhaps on the negative side, ability to obfuscate the details with complexity)?

And another question. Does Congress really have to do anything, or might we be better off making it really hard for them to change things? I suppose this is anathema for a progressive technocrat to ask. And maybe this is the point of the K-street gravy train - poisoning the well of legislative action by abusing legislative action. Buy by and large, after 200 plus years, why does congress have a whole lot that needs to be done these days? Shouldn't the basic structure be pretty well ironed out already, with the various departments getting most of what they need to get done, done, simply by following established law?

Posted by: ChasHeath | May 19, 2005 11:24:43 PM

Republicans actually win the battle on judges, Democrats will never yield on Bolton. They will filibuster forever on his nomination -- and time buys even more potential Republican defectors who are uncomfortable with the high-handed tactics of the White House."

The Republicans will merely invoke the same rule change on non-judicial nominees.

Posted by: Bob H | May 20, 2005 7:19:24 AM

Bolton's confirmation will not be able to be filibusted. His appoint is covered by the samd "advise and consent" section of the Constitution as Judges.

Posted by: Ed | May 20, 2005 10:45:19 AM

No, Bolton himself could get 'held' - Bush would have to do a recess appointment. But about the implications of the Nuke Option for the future, Ed and BobH are right.

Posted by: jonnybutter | May 20, 2005 2:47:26 PM

The version of the "nuclear option" that we expect Frist to invoke applies only to judicial nominations above the District Court level. But once that precedent is set, there is no reason it couldn't be extended to other "advice and consent" nominations.

Posted by: Mark Schmitt | May 20, 2005 2:50:19 PM

And it'd be totally uncharacteristic of these people to *not* finish off the fillibuster.

As to: "And nominations are a terrible platform for developing those alliances because they offer so little room for compromise. You can't amend them or modify them. The only compromise is to take a large number of nominations and agree to some and not others, which is a very limited option and doesn't give much play for creativity."

The usual solution is that some people simply don't get confirmed (whichever point they get stopped at). This administration doesn't accept that. It's not that they are losing more nominees; it's that they are losing *any*.

Posted by: Barry | May 20, 2005 3:35:28 PM