Friday, November 22, 2013

Post-Nuclear Etc.

Just a few notes to add to what I said elsewhere, including here for what the GOP was up to and here for something about power and control in the Senate.

* I think the certainty among many liberals that Republicans would rapidly go nuclear as soon as they had unified control of the Senate and the White House is at best unproven. After all, they didn't do it when they had the opportunity during the George W. Bush years. If Democrats ratcheted down to Bush-level selective filibusters...maybe yes, maybe no. It may be true that the next GOP Senate would be more radical-influenced than the last ones, but then again they would still need the votes; if they only have 51 or 52, it's not very likely.

* Conservatives who think that Bush-era filibusters were on a par with Obama-era filibusters...just stop it. It's not a serious argument. Obama has faced a true 60 vote Senate, which means that virtually everything has been filibustered (yes, even those judges who were approved by voice vote with no cloture vote only got there because they had secured 60 votes, and that's a filibuster. Or at least it was). That's new. The blockades-by-filibuster are essentially new, too. It's a little more complicated...there have been blockades before, but they're usually by a Senate majority, or at the end of a president's term, or both. Nothing like this one. The escalation is more severe on the exec branch nomination side, but it's still very large on the judicial side.

* And that's without even getting into the blue-slip situation.

* Just to be clear: yes, Democrats definitely ratcheted up judicial nomination filibusters during the George W. Bush presidency. Democrats also bear responsibility for ratcheting up opposition to executive branch nominations, with the Tower nomination a major turning point. Democrats, however, were willing to cut a deal to back down from the edge.

* Some liberals are urging Obama to now appoint very liberal judges. If he does that, it will risk defeat the old-fashioned way, by building a coalition of all Republicans and a handful of moderate Democrats. So far, Obama has stuck to mainstream judges, and that's meant he's retained just about every Senate Democrat on almost every confirmation vote (I don't actually remember any defections, but I assume there have been a few over the years). That's not to say Obama shouldn't do it. Just that there are costs and benefits that are not always easy to calculate.

OK, that's all for now, but I suspect I'll have more points later.


  1. Did the filibuster ever get in the way of the Republicans delivering for their base? Most of Bush's legislation either passed with votes from conservative Democrats, passed through reconciliation, or died through non-filibuster related means.

    The one time the filibuster did stand in the way was with the judges, and that was when they first brought up the idea of limiting the filibuster. One of the conditions of the deal that took it off the tables was that all of their judges would get confirmed. So we don't have a lot of examples of Republicans choosing between abandoning a policy goal and preserving the filibuster, whereas we have a lot of examples of them choosing "constitutional hardball".

    1. Even with judges, the filibuster never defeated a conservative Supreme Court justice. (Bork wasn't filibustered; he lost on a majority vote.)

      In fact, it's hard to see the filibuster benefiting Republicans all that much even if they have a Senate majority and the House *and the presidency* after 2016. They don't need it to appoint conservatives to the Supreme Court--Alito was confirmed, after all. And if they go further and abolish filibusters in general, that still won't help them very much, because they can repeal Obamacare by a simple majority--just say it's a tax and therefore not subject to the filibuster. They might be able to push privatization of Social Security through, but I doubt it--it wasn't defeated by the filibuster in 2005; it was so unpopular an idea it never came up for a vote in the House.

      All in all, the filibuster benefits conservative far more than liberals.

    2. Thomas and Kennedy were not only not filibustered, they were confirmed by Democratic Senates.

  2. My take on the 2005 nuclear threat is pretty much the same as for the commenters. Basically, the Democrats made the deal that the filibuster would stay and they wouldn't use it. There were a couple of judges who were blocked and all the rest were allowed. It wasn't really a compromise. The Republicans got what they wanted.

    I agree with JB's contention that the claim that Republicans would have gone nuclear as soon as they were in power is unproven. But the evidence is pretty clear that they would--at least to me. I think he's being too slippery here. Does he really think there was a large chance that the Republicans would have moved back? I have a vague feeling he's already written such an article so if anyone has the link, that would be great.


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