Jeffrey Toobin has an article in the current New Yorker on the fuss over the filibuster. I'd like to say something more detailed about it in the next day or two, but for now just a few quick-hit responses to claims and rhetoric by the GOP:
- In keeping with the privatization -> private accounts -> personal accounts rhetorical evolution, the Newspeak version of the nuclear option is the "constitutional option." Apparently calling it that makes it so. But as the story shows, some GOP senators -- the moderates and the "traditionalists" -- are uncomfortable with removing the filibuster by fiat. From here on in, one way to see where a senator stands is by listening for the label they use. Let's start a tally: McCain and Specter call it the nuclear option, and Collins sits on the fence by using both names. That's not even getting to the several others who expressed reservations. Perhaps that is why, despite rumors Frist would force the Dems' hand in February, the nuclear option has stayed parked in the silo: They might not have enough votes to win a simple majority. Wouldn't that be ironic.
- Grassley says "Filibusters are designed so that the minority can bring about compromise on legislation. You can always change the words of a bill or the dollars involved. But you can’t compromise a Presidential nomination. It’s yes or no. So filibusters on nominations are an abuse of our function under the Constitution to advise and consent." First, the history is false. The filibuster arose by accident, near as anyone can tell, due to an oversight in a rules rewrite early in the 19th century. Beware anyone on the right or the left saying the filibuster was "designed" for anything in particular. It was not. Like most of the rules in Congress, their purpose comes from their use. Second, one can certainly compromise on a nomination -- by putting forward a more moderate nominee. The filibuster functions no differently for a nomination than for a bill.
- Part of the strategy behind the nuclear option, as Toobin describes, is that a federal court would be extremely unlikely to overturn a rule change adopted by the Senate. The reason? Article I, Section 5 which permits each chamber of Congress to decide its own procedures. Ah, but there's the rub. It is for that very reason that a federal court would not declare the cloture rule and the filibuster unconstitutional either, despite the argument of Hatch, Frist and friends. It should hardly be surprising that for all the bluster raised, they have not whispered one syllable about challenging the practice in court. They won't because they'd lose. Thus, the claim that the filibuster is unconstitutional is false. The nuclear option is the strategy that eats itself.
- If the point of order against a filibuster is raised on the basis that the action is dilatory, that, too, bespeaks the hollowness of the strategy. For one, a perfectly forthright effort by the minority to engage in extended deliberation over a nominee might well be perceived by an annoyed majority as a dilatory tactic. Yet, that is not the standard put forward. Instead, we are meant to consider whether the filibuster of a nominee is per se dilatory. On what basis? Because it delays a vote? Well, so does any debate. Here the contrast with the last great effort in Congress to do away with dilatory tactics, the House circa 1890, is instructive. At that time, all action ground to a halt due to the "disappearing quorum" -- members were present but refused to heed a quorum call, depriving the House the majority it needed to proceed. The tactic did not involve any deliberation -- indeed, it involved nothing but refusing to answer -- and so could quite easily be labeled dilatory. The filibuster is another animal entirely, because here it involves action indistinguishable from ordinary Senate business -- debate -- but for the fact that the majority lacks the votes to impose cloture in order to end it.