March 9, 2005

Senate Insanity

Hendrik Hertzberg writes another great article in this week's New Yorker. This one is, in fact, more important than the last one I posted -- I really recommend reading it.

Last week's New Yorker featured a disturbing article ("Blowing Up the Senate") about the "nuclear option" Republicans are seriously considering in order to end all Democratic filibusters on Bush's most right-wing judicial nominees. I'll let Hertzberg describe:

Now it turns out that the filibuster is not the ultimate weapon after all. It’s merely the penultimate one. As Jeffrey Toobin reported in these pages last week (“Blowing Up the Senate”), the real ultimate weapon is—shades of Joe McCarthy!—the point of order. Here’s how it would work. Normally, under the Senate’s famous Rule XXII, it takes sixty senators, three-fifths of the full membership, to cut off debate and proceed to a vote. However, during a debate on a judicial nominee, a Republican senator would ask the Presiding Officer to rule that further debate is out of order. The Presiding Officer—Vice-President Cheney—would so rule. The ruling would be challenged, of course. But because such a challenge can be tabled by the vote of a simple majority, and because there are fifty-five Republican senators, the ruling would be upheld. And, boom, that would be that—a piece of procedural ordnance so devastating in its effects and its aftermath that it has been nicknamed “the nuclear option.”

The filibuster has always been controversial, and as Hertzberg points out, it has been used historically for some pretty atrocious purposes, but doing away with it thus, for the judicial nomination process, would be unprecedented and plain undemocratic. Hertzberg observes that, after all, the current Senate's 55 Republicans represent 131 million people, while its 44 Democrats represent 161 million.

It's no secret that Republicans would use the nuclear option to ram through nominees like Antonin Scalia. Hertzberg excellently calls attention to perhaps the tidbit of news from last week I found most incredible: Scalia, in addition to blasting his fellow Supreme Court Justices for ruling that the execution of minors is unconstitutional and morally indefensible (Only the likes of Iran and China still sanction it), called the Ten Commandments "a symbol of the fact that government derives its authority from God," during the recent case involving two Kentucky courthouses displaying the Commandments.

Somewhat reassuringly, Hertzberg reports that Democrats vow to raise hell if Republicans try the nuclear option. I think those of us not in the Senate should, too.

Edit: Just got an e-mail from MoveOn about this very issue. I'll post it as a comment.


  1. Dear MoveOn member,

    Tomorrow, March 10th, the Senate Judiciary Committee will consider the
    nomination of mining and cattle industry lobbyist William Myers III for a
    lifetime appointment to the U.S. Court of Appeals--the second highest
    court in the land. Myers is the first of 20 judicial nominees Bush has re-submitted
    in his second term. All 20 repeat nominees were rejected last term by
    Senate Democrats (as compared to the 204 judges they accepted) because these
    nominees consistently sided with corporate special-interests over the
    rights of ordinary Americans.

    This time, Bush is ready to fight dirty to force these nominees through.
    Dick Cheney has even threatened to use a parliamentary trick to eliminate
    the centuries-old rule requiring judges to have broad support in the
    Senate. This would effectively silence all 44 Democratic senators and the
    173 million Americans they represent--the majority of the country.

    With the first crucial vote on the first judge in less than a day, we're
    launching a national campaign to let our senators know that we out here in
    America are counting on them to hold the line on all 20 of Bush's
    rejected, corporate judges, and beat back his dirty parliamentary tricks.

    The first phase is this national petition that we will hand deliver to
    your senators before the confirmation votes for the 20 judges. And tomorrow,
    MoveOn members will host over 1000 house meetings to create
    local plans to save the judiciary. The courts we have for the next 30 years
    may depend on your efforts in the next few weeks.

    Please sign today:
    LinkTo ram his nominees through, Bush is hoping to use a parliamentary trick the Republicans
    refer to as the "nuclear option." For 200 years, if enough senators strongly objected
    to a federal judge, they could use a filibuster to force more debate until
    all their concerns were addressed. That's how Democrats blocked the worst
    of these 20 judicial nominees last term. Actually changing the rule would require a 2/3 vote
    of the Senate--and Bush doesn't have near that level of support.

    So instead, Vice President Cheney has threatened to abuse his authority as
    President of the Senate, and just declare that the right to filibuster
    judges is null and void. If Senate Majority Leader Bill Frist can twist
    enough arms to get 50 senators to support the ruling, the filibuster is
    history. For the first time ever, one party would have complete control
    over judicial nominations, all the way up to the Supreme Court.

    Both parties in the Senate were given the power to approve or reject
    judicial nominations because--above all else--judges must be trusted by
    Americans on all sides to rule fairly. So why does Bush refuse to send a
    few replacement nominees both parties can agree on? Why is he so intent on
    smashing Democratic resistance to these and all future nominees? Because
    while his presidency will be over in 4 years, the judges he appoints will
    be on the bench for the rest of their lives. This is Bush's big push to
    lock in his hard-right, corporate-friendly ideology for decades to
    come--and that is exactly why we must not back down now.

    The whole plot is set into motion tomorrow, with the committee vote on
    William Myers. We must draw the line here, by stopping Bush's 20 repeat
    nominees and standing up to the "nuclear option."

    Please sign the petition today:

    LinkThanks for all that you do,

    --Ben Brandzel, Eli Pariser and the whole MoveOn PAC Team
    Wednesday, March 9th, 2005

  2. Anonymous12:04 AM

    This is a drastic oversimplification. Wasn't the House of Representatives formed to best represent the masses, while the Senate was formed to equalize state representation. Numbers don't matter, just that each state elects two Senators who best represent their interests. Even though a certain NY senator represents millions of Democrats, her power and voice should theoretically be equal to a Republican senator, say from South Dakota, who represents Republicans numbering in the hundreds of thousands.
    Now I understand that this is not the way it works due to partisanship and party identification, but it does make your point with the Senate blurry.

  3. There are plenty of reasons to want to keep the filibuster around, but none of them are in your post. If you remember from elementary social studies, we have a bicameral legislature wherein the House of Representatives is meant to give the states voices proportional to their populations, while the Senate is meant to give each state an equal vote. Maybe you recall learning that the larger states and the smaller states fought about the form the legislature would take, because neither type of state wanted its voice drowned out by the other type. This 131 million vs. 161 million point is just nonsense. (And MoveOn thinks it's actually 173 million, according to the e-mail you posted in the comments).

    By your logic, one could argue that the only truly democratic way to force a supermajority requirement on an issue is the presidential veto, because after all, he represents 290 million Americans.