Category: Senate Iraq Debate
Posted by: A Waco Farmer
Back in the late spring of 2005, I wrote an op-ed piece for the local Waco paper regarding the so-called Gang of Fourteen and the then-controversial compromise over President Bush's judicial appointments. Back then the Democrats (in the minority) were filibustering, and the Republicans (in the majority) were bemoaning obstructionism and chicanery. This week the roles reversed--but I think this piece remains helpful toward placing the Senate filibuster in perspective.

From May 2005:

Last week, a bipartisan collection of fourteen moderates in the United States Senate caucused together to defuse an impending showdown over the ideological composition of the federal judiciary. Striking an eleventh-hour deal on the brink of political holy war, the self-selected centrists likely averted an injurious redefinition of established practice.

At the center of the controversy was the filibuster, a long-running Senate tradition designed to temper the will of the majority. The practice allows a minority of Senators to debate an issue indefinitely, preventing an “up or down” vote on a question on which they are certain to lose. Southerners in the antebellum era developed the filibuster to protect their “minority rights” in a nation increasingly uncomfortable with slavery. Conservatives from the South during the twentieth century seized upon the practice and repeatedly employed the filibuster to defeat civil rights legislation.

The most famous and perhaps most honorable use of the filibuster was actually a Hollywood creation. In Frank Capra’s Mr. Smith Goes to Washington, a courageous and scrupulous everyman spoke in the well of the Senate for almost twenty-four hours, and, in the end, triumphed over the corruption and institutional apathy he railed against.

The filibuster has always been controversial and a painful annoyance to the majority but, nevertheless, generally accepted as a helpful check to power. In this latest episode, the minority brandished the filibuster to deny appointments to ten of the President’s nominees to the circuit court. The majority party argued vehemently that “filibustering” judicial nominees was without precedent, which was not accurate. In 1968 the minority filibustered a Supreme Court nomination (Abe Fortas), and there are also some nineteenth century examples that may be precedents for the current use. However, the majority correctly asserted that the practice of regularly filibustering the President’s judicial nominees marked an extraordinary departure from Senate tradition.

In the strident battle that preceded last week’s dramatic cease-fire, both sides of the filibuster debate erroneously claimed the mantle of the Constitution and freely conflated cinematic legend and American history. Although the practice stands today as a legitimate piece of the procedural landscape in the Senate, the Constitution does not mention the filibuster. In fact, the minority tool came into use a full half-century after the founding.

The strained “constitutional” arguments, however, should not be dismissed completely. Many of them are, in fact, hypothetical extrapolations based on what we think we know about the intentions of the framers. For example, the founders designed the Senate to move cautiously, and they insulated the institution from unbridled majority rule. The filibuster springs from that tradition.

On the other hand, the Constitution provides specifically for super majorities on several separate occasions (one of which comes in the same sentence that contains the confirmation of “Judges” clause), but the document prescribes no such super majority for judicial nominations. Moreover, the Constitution gives authority to the Senate for “Advice and Consent” on judicial nominations in a section dedicated to establishing executive power (Article II; Section 2).

The principals involved in this current conflict admit that this episode is only a piece of a much bigger ideological battle. This impasse concerns the balance of power in the judicial branch and is a crucial prelude to the approaching confrontation over the next Supreme Court nominee. The issue animates the most devout and uncompromising elements from both ends of the American political spectrum, for the issues at the heart of the debate tread on their most sacred core convictions.

With the stakes so high, and the partisan rancor escalating, the majority threatened to change the rules and disallow the filibuster in the cases of judicial confirmations (the so-called nuclear option). The minority protested loudly and promised to retaliate in kind with procedural weapons that would bring the Senate to absolute gridlock. Negotiations failed and both sides prepared for a ferocious political clash.

Into this breach rode the defiant moderates. Their decision to step back from the brink and seek compromise guaranteed a vote on most of the President’s embattled nominees and accomplished great good on several other fronts. The agreement forestalled the further politicization of a process that is already too politically charged. Perhaps most importantly, the compromise seriously challenged the destructive precedent of filibustering judges and repudiated obstruction without rewriting Senate rules.

In addition to defending minority rights, the compromise promotes consultation and encourages consensus governance in the future. The episode made clear that the Executive must pay a price for spurning “Advice” and assuming “Consent.” The agreement also proves that Senators can cross the aisle and bridge the chasm of ideological animus. Choosing comity over war is a positive good in itself at this juncture in Senate history.

A very similar version of this essay appeared in the Waco Tribune-Herald on 3 June 2005.
Category: Senate Iraq Debate
Posted by: A Waco Farmer
More comments on the all-night Senate debate over the Reed-Levin amendment; Wednesday, AM:

I am a fan of Senate debate, as it is brimming with tradition and pageantry. However, it is mostly theatrical (as Republicans pointed out again and again over the course of the long night). Of course, that is not the point. A presidential inauguration is mostly theatrical. So many of our most cherished rituals are purely theatrical. The assertion of theatrics misses the importance of national political theater and ritual.

No matter, what detractors really seek to convey is that Senate debate is rarely productive in terms of accomplishment. Senate debate is a last resort when action is impossible. The business of the Senate is done off the stage. Deal making and consensus happens off the floor behind closed doors. The Senate works on consensus and compromise.

What does debate do for the Senate? Debate generally reinforces formerly held positions. Senate debate facilitates intransigence.

Personal example: if ever I am wavering on supporting the President, General David Petraeus and the troops, all I need to do is listen to Carl Levin and Dick Durbin, and I am ready to shoulder a weapon and march off to Iraq.

What we really need is a consensus to save ourselves. As I have said often as of late, the great question today is whether the Democrats are willing to forego political advantage to save the nation? Time will tell.
Category: Senate Iraq Debate
Posted by: A Waco Farmer
More comments on the all-night Senate debate over the Reed-Levin amendment; Wednesday, AM:

Good Morning America. The Senate did it. Bully for them. They debated a serious issue over night, calling America's attention to the most crucial decision of our generation.

Is that what Harry Reid intended? Yes and No.

Some random thoughts:

I did not watch the full proceedings over night. I slept some. But I left C-SPAN2 on all night, and I would wake up and groggily listen to various senators speaking to this national decision (Orin Hatch, Hillary Clinton, John Kerry, etc.). Good for them.

Of the speeches I actually watched, Tom Coburn was the surprise of the night. He was low key and thoughtful, admitting mistakes--but asking the only pertinent question: What Now?

Coburn did not allude to this famous assertion, but I was reminded of then-Secretary of State Collin Powell's famous caution to the President: "You break it; you own it."

At this point, taking into account all our mistakes, what are our responsibilities to the people of Iraq, the people of the Middle East and the citizens of the world?

What are our moral obligations?

The Reed-Levin supporters continue to assert that this withdrawal plan is our best bet to secure peace and stability in Iraq. But, as John McCain asked yesterday afternoon: "if retreat does not work, what is Plan B?"

For the most part, with very few exceptions, the GOP speeches struck me as uninspired. The Democrats cornered the market on glee and enthusiasm for the rhetoric of this debate. My hunch is that the Democrats are certain that they are on a roll. On the other hand, the Republicans are convinced this is a political loser. Most likely, these seasoned political hands have it right.

Back to Coburn: he came up with the best metaphor of the night. Coburn, the physician, depicted Iraq as a cancer patient that could be saved--but the treatment seemed too rigorous and painful; therefore, weary, frustrated and slightly irrational, we are ready to let the patient die. Powerful.

More to come...
Comments on the all-night Senate debate over the Reed-Levin amendment; Tuesday, PM:

Admittedly, I have argued this case both ways.

Did the Founders intend the Senate to be the "saucer that cooled the dangerously hot liquid of American democracy"? Or is the procedural trump card that requires sixty votes to move legislation an egregious violation of the clear intention of the constitutional framers?


A sixty-vote threshold is not in the Constitution. And I have bemoaned the time-tested obstructionist tool employed periodically by the minority to thwart the majority. On the other hand, the Senate rules and more than a century-and-a-half of tradition sanction the procedure. The Senate moves deliberately and by consensus in accord with the spirit of the original intent of the founding generation.

All too often, we are strict constructionists when it fits in with our legislative goals, and we are for common-sense interpretations and extrapolations of the Constitution when it suits our political interests. We are a slippery species.

But the bottom line is that the sixty-vote hurdle is what it is--and it here to stay.

Currently Speaking: Bob Menendez is a small man. Rookie senators so often overact trying to live up to the traditions of Webster and Clay. Menendez falls into that trap and is embarrassingly not ready for prime time tonight. In truth, I am not overly optimistic that he will ever grow into his role.

UPDATE: More random observations...

1. Is this a Democratic Party publicity stunt or a serious debate concerning the most important national decision of our time?


2. Vive C-SPAN2!

3. Kudos to Majority Leader Harry Reid for keeping these folks on the floor all night (so far--1:00 EDT). They ought to be listening to one another. Of course, that is not why the Majority Leader is pursuing this strategy. Nor am I confident that anybody will actually listen to the other side.

Having said that, the late Republican majority never had the grit to make the Democratic filibusters pay the price of inconvenience. Give Reid some credit for his absence of sympathy for the sleeping and work habits of his fellow senators.
Category: Senate Iraq Debate
Posted by: A Waco Farmer
Comments on the all-night Senate debate over the Reed-Levin amendment; Tuesday, PM:

Watching intermittently. Some highlights:

Mary Landrieu adamantly pounding the lectern asserting that this is "not a stunt." This is no "Hollywood" show. This is serious. This right before her aide places a made-for-television poster with the American flag in the background and the slogan "Let Us Vote" displayed prominently on an easel over her left shoulder. Very persuasive.

Granted, Joe Lieberman plays to all my biases, but he is a great man. With his haircut and fleshy face, he looks more like a senator from the golden age of the Senate than any other member. And, more often than not, he lives up to his visual.

More to come...
Category: Senate Iraq Debate
Posted by: A Waco Farmer
Responding to my assertion:

Politicians in Washington need to put down their partisan daggers and take up arms and work in concert to save America.

...from my previous post (view here), the Okie Gardener asks:

"Any suggestions on how to make them do that?"

American political history during times of crisis has always turned on the tension between lethal threat and partisan opportunity. Political parties tend to take advantage of opposition blunders. Moreover, political parties tend to characterize every program, promise and policy offered by the opposition as disastrous and invidious. Oftentimes self interest disguises itself as a desire for the greater good, which is not a condition unique to American politics--it is, in fact, a universal truism. Even in times of war, this basic human calculation rules the affairs of men.

Having said that, we have seen times when American politicians became statesman, choosing patriotism over party advantage. Stephen Douglass and Edwin Stanton during the Civil War come to mind. From my perspective, Zell Miller, Joe Lieberman and Ed Koch stand out as modern-day examples of stalwarts in the face of party loyalties. But these are exceptional individuals.

Back to the Gardener's question: how can we make this happen on a larger scale?

Beats me.

Why does partisan opportunity seem to outweigh patriotism at this particular moment?

The American people are frustrated and disheartened in some cases and just not very interested in some others, which means there is no constituency to "hold feet to the fire." The opposition party is convinced that there is no downside to opposing the President and this war. They are convinced, through extensive polling I suspect, that there is no political disadvantage to abandoning this military commitment.

How do we change that?

1) Take the case to the people and 2) win the war.

As Aesop's wise old rat would say: "easier said than done."

A desperate measure: Perhaps the Byrd-Clinton resolution to re-authorize the war is not a bad idea. Perhaps a full-throated debate on the war might wake up the citizenry. If the responsibility fell on us (we the people) to decide our own fate, perhaps we (the people) would act responsibly. Perhaps.

Big gamble? Yes. But democracy has been a roll of the dice from the very beginning...