Landmark Senate Vote Limits Filibusters | Hacker News Reader

Landmark Senate Vote Limits Filibusters

nytimes.com

42 pointsmcgwiz57 comments

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.

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).

>>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.

Not that I'm disagreeing, but what if the minority believes that all of the nominees are over-ideological candidates?

Then reality sets in and the majority (finally) exercises its constitutional powers to govern.

Ah, I get it, we fall back to the worst example of democracy; screw the minority.

When the minority is screwing the country, yes, screw the minority.

This is the system of governance we have. It functioned virtually without filibustering of nominees for two centuries. If you truly believe the problem here is the majority, you are far, far beyond reason.

Then we move to the next worse example; the majority defines what the minority is or is not doing.

At this point you're just trolling.

Hmmm, I thought I was giving thoughtful responses to your posts. After all, you read my first response about screwing the minority and your answer seemed to suggest your are fully willing to do so. If you're willing to accept one terrible aspect of democracy you should be willing to embrace it all. Not mildly attacking someone for pointing out your potential defects. I'm only trying to help.

Now I think I'm trolling, but it's a natural response due to your posts.

This is how any parliamentary body on the planet works. If you are concerned about this from a constitutional perspective you do exactly what the founders did: separate legislative powers into equal chambers.

If you place constitutional requirements above a majority vote on a parliamentary body then the judiciary has to step in and enforce those requirements violating the separation of powers.

What part of "you need to win elections in order to get to make the rules" is un-democratic?

I didn't say it was un-democratic. I was trying to point out that democracy can be a bad thing when the majority decides to vote themselves power to the detriment of the minority.

I'll take a model that iterates often, with higher likelihood of variance in ideology, over one that optimizes for moderation at the expense of gridlock.

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...

3) This rule change would only apply to presidential appointments. The 60-vote threshold would remain in place for other bills.

>> 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.

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.

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.

And therefore what? The people who drafted the Constitution intended the Senate to be an aristocratic body limited to white, male, landholders. Do you think that's a good idea? How far should we go to further the intentions of the drafters? Should we revive slavery?

Here's what one guy who had to miss the Constitutional convention because he was serving his nation abroad had to say:

"I set out on this ground, which I suppose to be self evident, that the earth belongs in usufruct to the living." (Thomas Jefferson)

And therefore if it needs updating it has always needed updating, unless something else changed. I agree with you that this is often overstressed but it is a useful perspective.

> The Senate was never meant to be a democratically elected body.

This is true only for very bizarre definitions of "never".

> Until the enactment of the 17th Amendment in 1913 Senators where picked by the States.

That's pretty good evidence that from 1913 on, the Senate was meant to be a democratically elected body.

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.

The current situation is that the party in power doesn't get to appoint anyone. What good is power then?

I would choose that over the alternative.

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 ...

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.

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.

At some point in the future, whether it is 4 years, 8 years, or more, the other guy will eventually be in power again. Then you want checks on the guy in power. Next time somebody on the far-right is in power, expect to see some VERY far-right judges appointed.

Entirely true in some ways, but it may not matter as much as you think.

Seeing very large numbers of cases has a tendency to change political and ideological views over times. The appointees they get are vetted in various ways to at least be qualified at the law, even if they have strong ideologies. Now, certainly, "true believers" aren't going to change, but ...

Plus, the federal judiciary doesn't pay well (relatively speaking), so unless they strongly care about deciding hundreds of random crappy cases, they often leave for greener pastures.

If a majority of Americans prefer extremists, then extremists we shall have. Such is the way of democracy.

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.

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.

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.

"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"

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

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.

I assume that the ability of the Majority leader to declare that only 50 votes are required is limited to Senate rule changes?

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.

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.

The power of precedent and fear of being in the minority is what generally fights against this. Rule changes that drastically favor the majority will hurt them when they end up in the minority.

I totally agree.

Senate rules since the 1970s (when the filibuster was set at 60) require 66 votes of all senators to effect a rules change.

This utilizes the majorities ability in any parliamentary body to set the precedent or rule on a point of order. hence the 'nuclear' option.

Senate rules allow the Senate president to bring up a rule change on a straight up or down vote.

Because they only needed a majority to pass the rule change. There wasn't enough opposition to cause a filibuster, which was the point. There was enough opposition to do a filibuster when 60 votes were needed, now that only a majority is needed a filibuster is pointless. Thus, the minority might as well go home if they face a united front from the majority on the specific points this rule change covers.

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

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.

Exactly. There was always a "gentlemans' agreement" not to abuse the game, but that decorum has been abandoned.

This is clearly the case. There is dispute over who abandoned what and when.

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.

And raising the standard of changing the rules just before you leave power.

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.)

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.

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.

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.

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/...

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.

"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...

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.

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