6 ms·

Landmark Senate Vote Limits Filibusters

42 points by mcgwiz 13y ago

axus 13y ago
The argument for not appointing any more appeals judges was that the caseload was light enough, that no more were needed. In my opinion, it was right for the Senate to give up a little power here. They should be exercising more oversight powers in other areas.
- r00fus 13y ago
  The Senate is giving up NO power. The Senate is deciding to act democratically now, on a simply majority vote, instead of being hobbled by a super-minority, and only for presidential nominations. Truly inappropriate nominations (ie, Harriet Myers) can still be blocked by majority vote. The entire filibuster was never laid out in the constitution, it's a convention adopted by the Senate itself and was used ruthlessly by southern racist senators (both Dem and GOP) to block progressive legislation despite being popular and wanted by the majority.
  - the_watcher 13y ago
    It's also been used (by both sides) to block all kinds of other things, from tax cuts to tax hikes, debt ceiling increases, defense authorizations, New Deal legislation, and judicial appointees. As a Senator, President Obama even voted to filibuster John Roberts appointment, who was fairly universally seen as a highly competent, qualified nominee as Chief Justice. In short, the filibuster has been used for the purpose it was designed for (a check on majority power in the Senate, which was designed to be much more conservative than the house - whether you like it or not, it's reality), as well as a tool for partisans and racists to get what they want. So basically, like every rule or regulation ever formulated.
    - greenburger 13y ago
      The cloture rules have changed many times over the years. A quick summary can be found on the US Senate webpage. However, Originally the filibuster was not unique to the Senate, House members could also filibuster, and there was no means of voting to end debate. Obviously this had to change if the House was to accomplish anything as it grew. One could well argue that it is time for the rules in the Senate to change again if it is to get anything done. [1]: http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm http://www.senate.gov/artandhistory/history/common/briefing/...
      - cpleppert 13y ago
        The cloture rules have only had significant changes twice in history. Once in the 1910s when they were instituted and later in the 1970s. The fact that the senate requires unanimous consent has nothing to do with any purpose but is basically a quirk of history that the senate never got rid of the unanimous consent requirement. What we call a filibuster today is just a use of withholding unanimous consent to block a motion that would otherwise pass with a majority vote and isn't related to the use of the filibuster in the 19th century.
- DannyBee 13y ago
  "The argument for not appointing any more appeals judges was that the caseload was light enough, that no more were needed. " This is of course, completely and totally false. One only needs to look at the stats to see that, depending on circuit, they end up with something like 3 new appeals per day on the low side, and 40 new appeals per day on the high side. http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2012/tables/B00Mar12.pdf http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics... Given the amount of time and effort it takes to decide a single appeal, the caseload is not "light" by any stretch of the imagination. Pendency is huge (even though very slowly decreasing on average) These stats also don't count the time it actually takes to hear argument on cases, etc. Just the number of filings.
lmkg 13y ago
For context: The federal court has been perennially over-booked and under-staffed for a number of years because the confirmations of judges to open vacancies were being used as political bargaining chips. Both parties would try to influence the ideological make-up of the judiciary. Back in the good ol' days when the filibuster was used with some modicum of restraint, this meant that a minority party could prevent over-ideological candidates from getting elected. But, over time, the process evolved to the point where the party out-of-power would try to block all nominations so that when they were back in-power in several years, they had more vacancies to fill with their own ideologically-pure candidates. Purely in terms of government fulfilling its obligated duties to function, this is an improvement because the judiciary will now become staffed. However, the lack of a filibuster threat will probably push us away from politically neutral appointments, towards an alternating (and hopefully balanced over time?) mix of biases in opposite directions. tl;dr this is why we can't have nice things.
- srl 13y ago
  I suspect moderates (and more senior folk) in both parties will tend to threaten a nay-vote on more extreme nominees, both in the interest of having a sane court system (in the case of moderates), and to avoid provoking retaliation from the other side (in the case of people who have been around a long time).
  - cpleppert 13y ago
    >>I suspect moderates (and more senior folk) in both parties will tend to threaten a nay-vote on more extreme nominees In cases where very ideological nominees have been presented in recent years there is no evidence that moderates have been prone to block them. So it isn't clear now what a senator could gain could gain by blocking his own parties nominee. It would require enough senators from the majority party to switch and vote against their party and maintain that united opposition against a candidate whose ideology they agree with simply because they may have qualms about how extreme his ideology is.
- talmand 13y ago
  Not that I'm disagreeing, but what if the minority believes that all of the nominees are over-ideological candidates?
tdees40 13y ago
For anyone uninformed on this matter, a few facts: 1) The Senate is a majority body, but it requires a 60 vote (i.e. 60%) threshold to cut off debate and force a vote on a bill; otherwise, debate continues indefinitely. 2) In practice, this obviously can lead to the Senate becoming a supermajority body if filibusters are routinely exercised. In the last 5-10 years, this has become the case. For instance, this is an example of a bill that "failed" despite receiving a 54-46 vote. http://www.washingtonpost.com/blogs/post-politics/wp/2013/04/17/senate-to-vote-on-amendments-to-gun-bill-with-background-check-plan-in-doubt/ http://www.washingtonpost.com/blogs/post-politics/wp/2013/04... 3) This rule change would only apply to presidential appointments. The 60-vote threshold would remain in place for other bills.
- the_watcher 13y ago
  >> 3) This rule change would only apply to presidential appointments. The 60-vote threshold would remain in place for other bills. However, this sets a very convenient precedent to expand the new rules for legislation should a caucus ever want it badly enough.
- bradleyjg 13y ago
  I should also be noted, for non-Americans or extremly ill informed Americans, that the Senate is already a body that is non-democratic. Every state votes for two Senators regardless of population. So even under a majority rule, Senators representing 16.9% of the population can block an appointment. Under the de facto 60 vote rule, Senators representing only 11% of the population could do so. To put that 11% in perspective, 13% of the US population is foreign born, 15.8% are baptist, 13.2% are African-American, and around 10.1% live in either the NYC or LA metropolitan statistical areas. There is perhaps an argument to be made about the majority not riding roughshod over the minority, but in this case the threshold for a blocking minority was just too small.
  - adestefan 13y ago
    The Senate was never meant to be a democratically elected body. Until the enactment of the 17th Amendment in 1913 Senators where picked by the States.
benjohnson 13y ago
This is a poor decision - the party in power will be able to appoint extremists. This may be temporary pleasing, but at some point the other party will be in power, with the net result that the judiciary will be filled judges of less moderation and more politics.
- smackfu 13y ago
  The current situation is that the party in power doesn't get to appoint anyone. What good is power then?
  - sigzero 13y ago
    I would choose that over the alternative.
    - DannyBee 13y ago
      Except it's quickly reaching the point where they don't even have a quorum of judges. A number of circuits are having to pull judges from other circuits in order to decide cases ...
      - talmand 13y ago
        Is this problem across the board or just for posts that are life-long appointments? I can understand the dilemma over life-long appointments but for judges easily replaced in the future then I fail to see what the hold-up is about.
        nknighthb 13y ago
        Life tenure is all we're talking about here. It's all that exists in federal courts of general jurisdiction. Every federal district, circuit, and supreme court judge appointed by the President and confirmed by the Senate is life tenure. Magistrates, who operate only on the district court level (not in the appellate courts or supreme court), are not Article III judges. They're appointed by the actual Article III judges without input from the President or Senate, and they can handle cases only by the consent of both parties, and their rulings are appealable to an actual Article III district court judge.
shooper 13y ago
What's stopping the Senate from reverting back to the old rules just before the next Senate/Presidential elections?
- the_watcher 13y ago
  They could do that, but there is also no reason that Republicans, should they take power, would just revert back again, and potentially go farther.
  - excitom 13y ago
    Exactly. There was always a "gentlemans' agreement" not to abuse the game, but that decorum has been abandoned.
    - dllthomas 13y ago
      This is clearly the case. There is dispute over who abandoned what and when.
- talmand 13y ago
  Nothing. These are rules of the Senate so they can be changed at will whenever they choose. Well, within the rules of the Senate that covers changing the rules of the Senate. But since it was done, it'll be easier to repeat it in the future. Which was why most wanted to avoid doing it over the years.
  - LanceH 13y ago
    And raising the standard of changing the rules just before you leave power.
- dragonwriter 13y ago
  The fact that the Senate rules are adopted for each new session, at the opening of the session, by a simple majority vote stops that from being meaningful as a tactic (nothing stops them from doing it, but it doesn't do any good.)
msg 13y ago
Just a shot across the bow. If we continue to see blanket obstructionism on legislation, I expect to see the filibuster limited there too (or made more difficult). That is when the cannonballs will start flying.
Nelkins 13y ago
If some senators were against this, why didn't they just use the filibuster to prevent the rules from changing?
- the_watcher 13y ago
  I may be wrong, but I believe Senate rules are set by majority vote, and there is a mechanism available to the Majority leader to simply declare only 50 votes are needed to pass. The main reason it isn't used all the time is that the majority party generally worries about repercussions when they are a minority party.
  - Nelkins 13y ago
    I assume that the ability of the Majority leader to declare that only 50 votes are required is limited to Senate rule changes?
    - talmand 13y ago
      If it is limited to Senate rules changes then it's irrelevant. The Senate rules are, after all, the rules. For example: Majority wishes to pass a bill that the minority doesn't agree with. Majority wants to change the rules on that vote to get it passed despite minority. Minority says they can't because the Senate rules forbid it. Majority changes rules from forbidding it to allowing it. Granted, that's a simplistic way of looking at it. It would seem to me that rule changes should have higher requirements than simple majority because then the majority can change the rules whenever they wish.
      - adestefan 13y ago
        One of the very few enumerated power in the Constitution is that the Senate and House get to make their rules however they see fit. What usually happens is that at the beginning of the new Congress the first order of business for each body is to set the current rules. Part of those rules are how to change the rules during the current. It's common for these to be passed unanimously.
protomyth 13y ago
Given Sen Reid's defense of the filibuster and opposition to a rules change in 2005, we basically see that this isn't for the good of the country, it is basic, bad politics. The Senate is not supposed to be efficient and the minority party needs to have a say. It is that simple. People pointing out the good old days, don't actually remember them.
- ap22213 13y ago
  Given the fact that Reid had voiced such opposition, and since they waited so long to do it emphasizes the significance of the act. They really didn't want to do it, but they really had no other choice.
  - protomyth 13y ago
    "They really didn't want to do it, but they really had no other choice."[1] Yes, he had a choice. Leave it the same as the other party did in 2005 and stop trying to be a modern day Senate version of Thomas Brackett Reed. The amount of debates that Reid has closed down has been amazing. The other party will get into power at some point and then Reid will regret this foolishness and so will we. 1) might as well say "The end will justify the means"

42 points by mcgwiz 13y ago

axus 13y ago

The argument for not appointing any more appeals judges was that the caseload was light enough, that no more were needed. In my opinion, it was right for the Senate to give up a little power here. They should be exercising more oversight powers in other areas.

r00fus 13y ago
The Senate is giving up NO power. The Senate is deciding to act democratically now, on a simply majority vote, instead of being hobbled by a super-minority, and only for presidential nominations. Truly inappropriate nominations (ie, Harriet Myers) can still be blocked by majority vote. The entire filibuster was never laid out in the constitution, it's a convention adopted by the Senate itself and was used ruthlessly by southern racist senators (both Dem and GOP) to block progressive legislation despite being popular and wanted by the majority.
- the_watcher 13y ago
  It's also been used (by both sides) to block all kinds of other things, from tax cuts to tax hikes, debt ceiling increases, defense authorizations, New Deal legislation, and judicial appointees. As a Senator, President Obama even voted to filibuster John Roberts appointment, who was fairly universally seen as a highly competent, qualified nominee as Chief Justice. In short, the filibuster has been used for the purpose it was designed for (a check on majority power in the Senate, which was designed to be much more conservative than the house - whether you like it or not, it's reality), as well as a tool for partisans and racists to get what they want. So basically, like every rule or regulation ever formulated.
  - greenburger 13y ago
    The cloture rules have changed many times over the years. A quick summary can be found on the US Senate webpage. However, Originally the filibuster was not unique to the Senate, House members could also filibuster, and there was no means of voting to end debate. Obviously this had to change if the House was to accomplish anything as it grew. One could well argue that it is time for the rules in the Senate to change again if it is to get anything done. [1]: http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm http://www.senate.gov/artandhistory/history/common/briefing/...
    - cpleppert 13y ago
      The cloture rules have only had significant changes twice in history. Once in the 1910s when they were instituted and later in the 1970s. The fact that the senate requires unanimous consent has nothing to do with any purpose but is basically a quirk of history that the senate never got rid of the unanimous consent requirement. What we call a filibuster today is just a use of withholding unanimous consent to block a motion that would otherwise pass with a majority vote and isn't related to the use of the filibuster in the 19th century.
DannyBee 13y ago
"The argument for not appointing any more appeals judges was that the caseload was light enough, that no more were needed. " This is of course, completely and totally false. One only needs to look at the stats to see that, depending on circuit, they end up with something like 3 new appeals per day on the low side, and 40 new appeals per day on the high side. http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2012/tables/B00Mar12.pdf http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics... Given the amount of time and effort it takes to decide a single appeal, the caseload is not "light" by any stretch of the imagination. Pendency is huge (even though very slowly decreasing on average) These stats also don't count the time it actually takes to hear argument on cases, etc. Just the number of filings.

lmkg 13y ago

For context: The federal court has been perennially over-booked and under-staffed for a number of years because the confirmations of judges to open vacancies were being used as political bargaining chips. Both parties would try to influence the ideological make-up of the judiciary. Back in the good ol' days when the filibuster was used with some modicum of restraint, this meant that a minority party could prevent over-ideological candidates from getting elected. But, over time, the process evolved to the point where the party out-of-power would try to block all nominations so that when they were back in-power in several years, they had more vacancies to fill with their own ideologically-pure candidates. Purely in terms of government fulfilling its obligated duties to function, this is an improvement because the judiciary will now become staffed. However, the lack of a filibuster threat will probably push us away from politically neutral appointments, towards an alternating (and hopefully balanced over time?) mix of biases in opposite directions. tl;dr this is why we can't have nice things.

srl 13y ago
I suspect moderates (and more senior folk) in both parties will tend to threaten a nay-vote on more extreme nominees, both in the interest of having a sane court system (in the case of moderates), and to avoid provoking retaliation from the other side (in the case of people who have been around a long time).
- cpleppert 13y ago
  >>I suspect moderates (and more senior folk) in both parties will tend to threaten a nay-vote on more extreme nominees In cases where very ideological nominees have been presented in recent years there is no evidence that moderates have been prone to block them. So it isn't clear now what a senator could gain could gain by blocking his own parties nominee. It would require enough senators from the majority party to switch and vote against their party and maintain that united opposition against a candidate whose ideology they agree with simply because they may have qualms about how extreme his ideology is.
talmand 13y ago
Not that I'm disagreeing, but what if the minority believes that all of the nominees are over-ideological candidates?

tdees40 13y ago

For anyone uninformed on this matter, a few facts: 1) The Senate is a majority body, but it requires a 60 vote (i.e. 60%) threshold to cut off debate and force a vote on a bill; otherwise, debate continues indefinitely. 2) In practice, this obviously can lead to the Senate becoming a supermajority body if filibusters are routinely exercised. In the last 5-10 years, this has become the case. For instance, this is an example of a bill that "failed" despite receiving a 54-46 vote. http://www.washingtonpost.com/blogs/post-politics/wp/2013/04/17/senate-to-vote-on-amendments-to-gun-bill-with-background-check-plan-in-doubt/ http://www.washingtonpost.com/blogs/post-politics/wp/2013/04... 3) This rule change would only apply to presidential appointments. The 60-vote threshold would remain in place for other bills.

the_watcher 13y ago
>> 3) This rule change would only apply to presidential appointments. The 60-vote threshold would remain in place for other bills. However, this sets a very convenient precedent to expand the new rules for legislation should a caucus ever want it badly enough.
bradleyjg 13y ago
I should also be noted, for non-Americans or extremly ill informed Americans, that the Senate is already a body that is non-democratic. Every state votes for two Senators regardless of population. So even under a majority rule, Senators representing 16.9% of the population can block an appointment. Under the de facto 60 vote rule, Senators representing only 11% of the population could do so. To put that 11% in perspective, 13% of the US population is foreign born, 15.8% are baptist, 13.2% are African-American, and around 10.1% live in either the NYC or LA metropolitan statistical areas. There is perhaps an argument to be made about the majority not riding roughshod over the minority, but in this case the threshold for a blocking minority was just too small.
- adestefan 13y ago
  The Senate was never meant to be a democratically elected body. Until the enactment of the 17th Amendment in 1913 Senators where picked by the States.

benjohnson 13y ago

This is a poor decision - the party in power will be able to appoint extremists. This may be temporary pleasing, but at some point the other party will be in power, with the net result that the judiciary will be filled judges of less moderation and more politics.

smackfu 13y ago
The current situation is that the party in power doesn't get to appoint anyone. What good is power then?
- sigzero 13y ago
  I would choose that over the alternative.
  - DannyBee 13y ago
    Except it's quickly reaching the point where they don't even have a quorum of judges. A number of circuits are having to pull judges from other circuits in order to decide cases ...
    - talmand 13y ago
      Is this problem across the board or just for posts that are life-long appointments? I can understand the dilemma over life-long appointments but for judges easily replaced in the future then I fail to see what the hold-up is about.
      - nknighthb 13y ago
        Life tenure is all we're talking about here. It's all that exists in federal courts of general jurisdiction. Every federal district, circuit, and supreme court judge appointed by the President and confirmed by the Senate is life tenure. Magistrates, who operate only on the district court level (not in the appellate courts or supreme court), are not Article III judges. They're appointed by the actual Article III judges without input from the President or Senate, and they can handle cases only by the consent of both parties, and their rulings are appealable to an actual Article III district court judge.

shooper 13y ago

What's stopping the Senate from reverting back to the old rules just before the next Senate/Presidential elections?

the_watcher 13y ago
They could do that, but there is also no reason that Republicans, should they take power, would just revert back again, and potentially go farther.
- excitom 13y ago
  Exactly. There was always a "gentlemans' agreement" not to abuse the game, but that decorum has been abandoned.
  - dllthomas 13y ago
    This is clearly the case. There is dispute over who abandoned what and when.
talmand 13y ago
Nothing. These are rules of the Senate so they can be changed at will whenever they choose. Well, within the rules of the Senate that covers changing the rules of the Senate. But since it was done, it'll be easier to repeat it in the future. Which was why most wanted to avoid doing it over the years.
- LanceH 13y ago
  And raising the standard of changing the rules just before you leave power.
dragonwriter 13y ago
The fact that the Senate rules are adopted for each new session, at the opening of the session, by a simple majority vote stops that from being meaningful as a tactic (nothing stops them from doing it, but it doesn't do any good.)

msg 13y ago

Just a shot across the bow. If we continue to see blanket obstructionism on legislation, I expect to see the filibuster limited there too (or made more difficult). That is when the cannonballs will start flying.

Nelkins 13y ago

If some senators were against this, why didn't they just use the filibuster to prevent the rules from changing?

the_watcher 13y ago
I may be wrong, but I believe Senate rules are set by majority vote, and there is a mechanism available to the Majority leader to simply declare only 50 votes are needed to pass. The main reason it isn't used all the time is that the majority party generally worries about repercussions when they are a minority party.
- Nelkins 13y ago
  I assume that the ability of the Majority leader to declare that only 50 votes are required is limited to Senate rule changes?
  - talmand 13y ago
    If it is limited to Senate rules changes then it's irrelevant. The Senate rules are, after all, the rules. For example: Majority wishes to pass a bill that the minority doesn't agree with. Majority wants to change the rules on that vote to get it passed despite minority. Minority says they can't because the Senate rules forbid it. Majority changes rules from forbidding it to allowing it. Granted, that's a simplistic way of looking at it. It would seem to me that rule changes should have higher requirements than simple majority because then the majority can change the rules whenever they wish.
    - adestefan 13y ago
      One of the very few enumerated power in the Constitution is that the Senate and House get to make their rules however they see fit. What usually happens is that at the beginning of the new Congress the first order of business for each body is to set the current rules. Part of those rules are how to change the rules during the current. It's common for these to be passed unanimously.

protomyth 13y ago

Given Sen Reid's defense of the filibuster and opposition to a rules change in 2005, we basically see that this isn't for the good of the country, it is basic, bad politics. The Senate is not supposed to be efficient and the minority party needs to have a say. It is that simple. People pointing out the good old days, don't actually remember them.

ap22213 13y ago
Given the fact that Reid had voiced such opposition, and since they waited so long to do it emphasizes the significance of the act. They really didn't want to do it, but they really had no other choice.
- protomyth 13y ago
  "They really didn't want to do it, but they really had no other choice."[1] Yes, he had a choice. Leave it the same as the other party did in 2005 and stop trying to be a modern day Senate version of Thomas Brackett Reed. The amount of debates that Reid has closed down has been amazing. The other party will get into power at some point and then Reid will regret this foolishness and so will we. 1) might as well say "The end will justify the means"