CONTRIBUTORS

Senate filibuster is not the problem

Posted Dec. 16, 2011, at 5:09 p.m.

If the thrust of the BDN’s Dec. 14 editorial “Senate filibuster’s sad, maddening history” is that Senate Republicans holding the nomination of former Ohio Attorney General Richard Cordray to be the Consumer Financial Protection Bureau’s first director hostage is sad and maddening, I agree.

Objections center not on the qualifications of President Obama’s nominee, but on their unwillingness to accept the existence of the agency created as a part of last year’s Dodd-Frank financial regulatory reform legislation. The Republicans have vowed to oppose any nominee to the post. Majority Leader Harry Reid, D-Nevada, pointed out on the Senate floor, “This is the first time in the Senate’s history that a party has blocked a qualified candidate solely because they disagreed with the existence of an agency that has been created by law.”

This is sad and, in my judgment, the use of the filibuster for such unbridled obstructionism is both maddening and an abuse of the Senate rules.

Blocking the Cordray nomination is even a notch worse than the other obstruction referenced by the BDN, President Obama’s nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals. At least in the case of lifetime judicial appointments, it’s a good thing that presidents are required to weigh the ability of potential judges to be confirmed under a supermajority requirement that includes at least some of the minority party.

This was the rationale behind the “Gang of 14’s” pledge to oppose filibusters on judicial nominations except in “extraordinary circumstances.” It was not clear at the time, and remains unclear today exactly what constitutes “extraordinary circumstances,” but it seems unlikely to apply to Halligan, a former New York Solicitor General and highly qualified mainstream legal thinker.

However, if the thrust of the BDN editorial is, as the headline appears to suggest, that the problem is the Senate filibuster itself, I strongly disagree.

It is tempting when faced by bad behavior by the Senate’s minority to focus on rewiring the rules to permit the majority to work its will. In 2005, the Republicans, led by then-Senate Majority Leader Bill Frist, R-Tenn., frustrated by the Democrats’ opposition to 10 of President Bush’s federal court nominees, proposed to eliminate the filibuster by means of the “nuclear option.”

The “nuclear option” rested on the willingness of the Senate’s majority to ignore the rules, the advice of the parliamentarian and 200 years of Senate history to sweep it away by fiat. The presiding officer, presumably Vice President Cheney, would circumvent the rules and declare the filibuster unconstitutional and by simple majority vote the Frist-led majority would uphold the ruling, setting a new and binding Senate precedent.

The plan was thwarted by the Gang of 14. They came together, seven senators from each party, to forge a compromise which they had the votes to impose on both parties. (Seven votes, given the 55-45 split at the time, were enough to end filibusters and to block the use of the “nuclear option.”) Earlier this year, one of them, Sen. Lindsey Graham, R-S.C., said, “Many Republicans who were ready to pull the trigger on the nuclear option on judges are now glad they didn’t. This place would have ceased to function as we know it.” Current Republican Leader Mitch McConnell, R-Kent., has called the nuclear option, a “dumb idea.”

Sen. George Mitchell, as he often does, put it most clearly at the time: “The Senate’s power to confirm or reject judicial nominees balances the president’s authority to nominate them. The proposal by some Republican senators to change rules that have governed the Senate for two centuries now puts that system in danger … Most Americans may not be aware of the complexities of the Senate’s rules, but they do know and understand two fundamental principles: playing by the rules and dealing fairly with others. The nuclear option violates both.”

As the BDN wrote, the shoe is now on the other foot. The Democratic majority must not match the hypocrisy of the Republicans with their own hypocrisy by adopting the “nuclear option.”

Rich Arenberg is co-author of “Defending the Filibuster: The Soul of the Senate,” written with former Senate Parliamentarian Robert Dove, which will be published by Indiana University Press next summer. He served on Capitol Hill for 34 years working for Sens. Paul Tsongas of Massachusetts, George Mitchell of Maine and Carl Levin of Michigan. He is currently an adjunct professor at Brown University, Northeastern University and Suffolk University.

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