Tuesday, November 19, 2013

Filibuster Showdown Update

Greg Sargent is reporting that Harry Reid is going to move towards a showdown on judicial filibusters sometime in the next week, perhaps in the next couple of days.

He has a leadership aid saying Democrats have "no choice," which is pretty much what I've been saying as this thing has been developing.

Think of this as a bargaining game, with the goal of (most of the majority) Democrats to get a situation where filibusters are used, rarely, against nominees who are thought by the minority as far out of the mainstream. They don't want an outcome with no filibusters, because they want to preserve their position when they are in the minority; but they also don't want more frequent filibusters.* As Republicans push farther and farther from the Democratic ideal point, total elimination of the filibuster becomes a more and more appealing second-best end point.

Blockading three DC Appeals Court seats is, I've thought from the beginning, far beyond that line. Thus "no choice."

Remember, we still don't know exactly why the Republicans are where they are. They may want Democrats to eliminate the filibuster; in that case, that's what we'll get. On the other hand, it could merely be a breakdown in the tag-team voting they've used since the summer confrontation to get cloture on nominations, with different sets of at least five (previously six) Republicans voting yes. If that's the case, then it may just mean that the dozen or so tag teamers will get together and figure out who has to cast the three additional votes needed on these judicial nominees.

If however, Republicans mistakenly thought that they could roll the Democrats on this but don't want majority-imposed reform (which, after all, would leave them unable to stop any future nominees), then they'll need to back down, and the question becomes how far. Perhaps they could get a deal in which they only blockade one seat. More likely, they would have to give up the blockade and agree to allow final votes on at least two of the current nominees and a replacement for the other (assuming they want to take their chances with another selection).

(Tweeter Mansfield 2016 reminds us that Democrats want new additional judicial seats, and suggests that could be part of a deal. That's a deal that I think Democrats should be happy to take, but one which Senate Republican dealmakers, unfortunately, can't deliver on because it would require House Republicans to go along. It's worth remember, however, that part of the reason that the DC Circuit's caseload is comparatively low is that Congress has failed for many years now to add seats elsewhere on the federal bench).

As long as I'm here, I should mention two arguments I've made in the past that are relevant to this showdown. One is that I don't think the Democrats will push ahead with a bare majority of 50 plus Joe Biden; I think they won't do it without at least 52. I do think they'll have the votes (as Jennifer Bendery's reporting confirms) -- in fact, I suspect they'll have 54 of 55, everyone but Levin. But some of the less enthusiastic may only be along for part of the ride; indeed, it's even possible that some of them might just be bluffing, and that Harry Reid knows he can't count on them. That's possible, but I don't believe it's true at this point.

The other one is that I really don't give much weight to minority-party threats that they'll shut the Senate down after majority-imposed reform. I expect maybe a few display of outrage, but that they'll fizzle out rapidly.

At any rate, it sure looks like we'll know more very soon.

*It's actually more complicated. They may be indifferent about judicial filibusters, but want to preserve other filibusters -- and believe that majority-imposed reform on one would lead eventually to elimination of all filibusters. But that doesn't really change the situation described here.


  1. I'm convinced that -- as you suggest, I think -- neither side actually wants to get rid of the filibuster and the GOP is bluffing because, hey, why not? Most likely the GOP will realize Reid has the votes to go nuclear and will try to make a deal. But what if the deal to be had is the three DC Circuit seats go to Millett, Wilkins, and Miguel Estrada? Would/should each side accept that? Also, should/will the Democrats insist on a vote for Mel Watt to run the FHFA as part of any deal?

    1. No, the Democrats would never accept that deal, nor should they. The only "deal" to be had is that the President gets to pick mainstream nominees within his party to fill pending vacancies, and the Senate minority gets to permanently block the occasional nominee that they consider to be out of the mainstream. If the Senate GOP rejects that deal, they'll end up with no input into the judicial nomination process.

    2. Anon21, I agree the Democrats should not accept that deal, but I fear they would. There is precedent for giving the other party an appeals court nominee, and here you'd be able to explain it away as fair because Estrada was previously unfairly blocked from this very Court (as the Senate Democrats would have to admit, since Justice Kagan said so at her confirmation hearing). I think it would be hard for Reid to keep 51 Democrats unified in being willing to go nuclear if that was the deal on the table.

  2. Personally, I favor majority rule. Screw the filibuster.

  3. Reid has to do it if he wants to be respected-- at all! They aren't blocking these nominations because they are inferior but because they are mad at Obama and don't like his philosophical agenda-- the one he was elected on. It's like win or lose the election, they want to win. Let majority rule!

  4. One thing no one ever talks about (because it sounds like partisan hackery?), but Reid and McConnell must surely both realize, is that a filibuster for nominations is asymmetrically valuable to the two parties.

    Right-wing frothery notwithstanding, does Obama even know a judge that would be a nightmare to the Republicans? I mean, an incremental nightmare vs. the status quo? Of course, all of them are ideologically impure, but given the reach of the Great Society, how much worse could any of them make things? Order single-payer? Rule that a 90% top tax bracket is constitutionally mandated? Maybe in 1930. Surely there's no one like that in the democratic mainstream today. Indeed, any judge that would freak out the Republicans (beyond where the society has already gone) would no doubt alienate all the moderate Clinton-type Democratic senators as well.

    By immense contrast, there are any number of Republican judges who would, at the drop of a hat, roll back much of what liberals cherish. Women's reproductive rights. Climate efforts. Social programs. And on and on and on and on and on.

    So - why is Reid hesistant - hesistant still - to go nuclear?

    Cause he needs the filibuster far more than McConnell does, and he and McConnell both know this.

    1. This is a very very good point.

    2. This makes sense, except that when we're talking about keeping seats empty rather than filibustering particular nominees then the logic reverses itself. Keeping the seat empty means that right-wing Bush appointments still rule and leaves room for a future Republican president to fill all of the slots. In other words, if the filibuster is used the way Republicans use it, it makes it more roll backs of liberalism more likely. This is most obviously true when it comes to climate change.

      Also, majority imposed reform of any sort makes all other majority imposed reform more likely. It's not likely that judicial filibusters--the most defensible kind of filibuster--are going to be dropped but other kinds of 60-vote barriers will remain intact. And when it comes to filibustering bills, your logic doesn't hold--there are lots and lots of changes Democrats would like to enact into law, but Republican legislators mostly lack the nerve to rollback a piece of the safety net once its been in place for more than a decade.

      But I think our difficulty in guessing the real intentions of Republicans is evidence that the incentives don't clearly push in one direction or the other. It's unclear whether Republicans win or lose if Democrats deploy the nuclear option. It's very clear that Republicans win if Democrats lose their nerve. Therefore, Republicans are going to push this all the way.

    3. @prefix-free: the point about the empty seats is a good one, especially since McConnell is 'protecting' benches that have been most recently filled by a guy on his team. What we don't know, in the abstract, is whether Bush would have put up the same nominees in a filibuster-free environment when Republicans controlled the senate.

      We also don't know if Obama (or, perhaps, Hillary Clinton) would put up the same nominees without the filibuster; I think most of the relatively non-partisan among us would predict that Bush's nominees become relatively more ideological in a filibuster-free world than an Obama's or Hillary Clinton's do. Even if that's true, though, the abstract doesn't mesh with McConnell's current, practical considerations, as you note.

  5. I've long thought that the best tactical solution for what the Republicans want (ie no nominee on the DC circuit) is to let one of the three through. I think I also would have been more hesitant about filibustering Watt.

    This would have at least provided a fig leaf (we've given you two now on that court, it now tips Democratic, if only by a seat, and the seniors are still GOP-leaning) and they could have combined that with the argument they are using along with Grassley's proposal to shrink the court (better to have legislation than just to complain about the court being "too big".

    It still may have been unsustainable but it seems more realistic than what they chose to do. Of course I'm not in the Senate. Maybe they really think they can win and the Pandora's Box is too big of a deterrent. Or maybe they just don't care at this point.


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