Scott Brown has long had a talent for drawing attention to himself, as we’ve discussed previously. And today is no exception, with both a front-page Globe story and an op-ed devoted to his doings. Herewith, today’s Browned-up. (Get it? “Browned-up” — rhymes with “round-up”? Oh, I slay myself. Moving on.)
The bigger picture issue on the Kagan nomination, though, is that things seem to have changed rather dramatically in the last few years with respect to Supreme Court nominations, and not for the better. As recently as the nomination of John Roberts in 2005, half the Democrats voted “yes” even though it was perfectly obvious that Roberts would be a very reliable conservative on the Court. That vote (78-22, fairly close by historical standards) was far easier than the two most recent additions to the Court, Samuel Alito (58-42) and Sonia Sotomayor (68-31). If Kagan is confirmed by a basically partisan vote, with only a few Republicans in support (I suspect Snowe, Collins, and Graham will vote “yes” along with Brown), we will be looking at a situation where it’s hard to see how a president could get a nominee to the Supreme Court confirmed if the other party controls the Senate. That would be a very, very bad precedent indeed.
Part of Lehigh’s critique is that Brown’s position on the deficit is rejected by people who are actually serious about reducing the deficit that matters — i.e., the long-term structural deficit, not the short-term budget deficit. Which naturally leads one to inquire whether the good Senator knows the difference. Anyone have any evidence that he does?
No polls on her have come with her more than a 44% favorability rating, and if anything, she’s being met with more voter apathy. I don’t see a no vote as annoying independents, or at the worst annoying a fraction of them.
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p>Allowing single senators to put “holds” on nominees or legislation, and allowing 41% of the senators to block legislation or nominees is a Senate tradition that allows Republicans to interfere with good government.
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p>They have had a very simple strategy since 1993: when in the minority party, block everything the Democrats want to do (no matter how popular the agenda items) and run on the idea that Democrats can’t govern.
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p>The counter-strategy should be simple: change the Senate rules to disallow this obstruction.
you might be right about all that, but that’s not really what I’m talking about. I don’t think a Supreme Court nomination has ever been filibustered or held, at least not recently, and that’s not going to happen this time either.
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p>What I’m talking about is the fact that, apparently, almost all Republicans will vote against Obama’s Supreme Court nominees simply because he nominated them. That has not been the case before – along with Roberts, Scalia, Kennedy, Breyer and Ginsburg were all confirmed by extremely lopsided margins, even though everyone knew that Scalia and Kennedy were conservative, and Breyer and Ginsburg were (relatively) liberal. But now, quite suddenly, we have largely partisan votes on Supreme Court nominees, which means that as soon as the President and the Senate are of opposite parties, we’ll have a very big problem.
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p>To be fair, of course, Alito’s was the most recent nearly-partisan vote along these lines, where only four Democrats voted in favor. Still, Alito was very much at the extreme right edge of the judicial pantheon, whereas Sotomayor and Kagan are both pretty solidly center-left. It’s not like Obama nominated Larry Tribe to make up for Alito.
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p>It is also a Senate tradition that allowed Democrats to put hols on most of Bush’s nominees to the federal bench interfering with bad government. I am tired of progressives complaining about the rules of the Senate, instead of complaining about rules that are essentially vital to the Senate’s function and Madison’s vision of an elite body sheltered from public opinion that can protect states and minority rights, they should actively attack the Republicans as the obstructionists they are. The narrative is that Boehner and McConnell tried to work with Obama but he is a socialist partisan. The narrative should be that this is a do-nothing Congress because of the Republican minority. Instead of carefully avoiding labeling the Congress as do-nothing since we fear voter backlash we should do that, point out all the great accomplishments of two years in power, that we have done more for people in two years than the GOP did in thrice that time under Bush, Hastert, and Frist. The bailouts were a direct result of banking deregulation, tie the Wall Street reform as an anti-bailout measure. Paint the GOP as the party of Wall Street instead of Main Street time and time again. Voting against unemployment benefits, slashing health care for the jobless and the retired, voting against healthcare for the uninsured and children, voting against stimulus jobs. That should be the narrative. The party of Hoover is back and it is single handedly delaying the recovery. I have not heard a single Democrat say that, instead we are playing defensive against the tea party arguing we care about deficits and spending too and hate big government as much as the GOP. That is the path to electoral failure, the path of Democrat-lite, the same idiotic strategy devised by the same idiotic lobbyists and DLCers that allowed Bush to get half of everything he wanted. Its not change we believe in and its not what the people voted for. The wanted actions that were ballsy instead of mushy.
Madison didn’t write or envision any of these Senate rules. Nowhere in either the Constitution or the Federalist Papers are either the filibuster or holds contemplated. I for one don’t like these tactics regardless of who is using them. I also just skimmed the Senate rules and could find no explicit reference to either of these, so it seems that it’s just tradition and gentlemens agreements that keep them alive.
I did say that he envisioned the Senate as an elite body that would respect minority and states rights (hence all states get equal representation, body limited to two per state to increase individual power of the members, unlimited speaking time for Senators, etc.) and be free and insulated from the whims of popular democracy which the founders viewed as anarchic and dangerous. They always, always insisted we were a republic and not a democracy. In many ways we remain fundamentally a republican democracy, and should remain so. By removing this Senate tradition and rule we remove not just history and tradition but one that has served to keep the Senate insulted from popular opinion and massive democracy. Yes like any tool it has been used for good and for bad purposes, but by removing the filibuster we say to ourselves that the Senate is a body no different from the House. We say that it too should be governed by a simple direct democracy. At that point why stop there? Isn’t the two senators requirement chocking democracy and progressive reform? Lets eliminate that and allow the populous states to get their fair share of votes. Then we realize why really have two separate chambers we could just have one if they are essentially the same. Then we could say why have representatives at all when it is far more democratic to vote on all issues via national plebiscite.
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p>I am sorry but gutting this tradition would make the Senate irrelevant and simply a carbon copy of the House. It would remove many of the rationals and frameworks that make the Senate unique and would create a perverse logic that expediency in the name of ‘democracy’ will be the new norm. I would much rather preserve that icon of republican debate that is the filibuster, consciously modeled off of the Roman Republic and its Senate. Let us keep the Senate intact, unique, and safe from the dictatorship of the majority so feared by our founders.
Plus the more I think about it the more I seem to remember that Madison’s personal preference was for a Senate represented by population rather than equally. What does make the Senate different is that it represents states, though some of that distinction was lost with the 17th amendment. It’s quite the leap, one I won’t take, to say that bringing some fairness to the procedures of the Senate makes it just like the House. Even with mentioning unlimited speaking time in your parenthetical above you are still ascribing views to Madison he did not necessarily hold. You can still have the check of the concurrent majorities of both the people and the states without the component of a minority blocking procedural progress. Your fears are misplaced as are your comparisons to the Roman Senate.
I would argue that the filibuster has worked for nearly two centuries as a device that has protected minority opinions and the rights of states. Some of this created outcomes progressives and even Americans might not like. The Senate always overrepresented the South and allowed slavery and Jim Crow to live on for far too long, it has always overrepresented rural interests allowing farm subsidies to go on, along with massive corporate handouts to varying degrees. I would also argue that the Senate has protected lone wolves on more than one occassion when it was beneficial. Finegold’s threat to filibuster the Patriot Act renewal allowed it to be watered down considerably, the threat of filibuster prevented many of the most extreme right wing judicial appointments under Bush, it prevented the privatization of social security, the passage of the federal marriage amendment, it helped end funding for the Vietnam War, open up the CIA to civil review, helped shed light on Watergate and Iran-Contra. For every racist that stood up to stall progress on civil rights another progressive ahead of his or her time stood up to defend sound views when they weren’t popular.
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p>The point of the Senate is to debate and really iron out laws, to serve as a true check on the House which passes bills that are popular but not necessarily right, this check is vital to the separation of powers as Madison envisioned them, heavily influenced by Montesquieu. Lamentably, the Senate lost some of these differences with the 17th Amendment, but the filibuster is one tradition that acts as a key tool in this checking power, slowing the passage of bills, forcing more deliberation and consideration, and being resistant to change. Of course we don’t like that when we are in power! And that is the whole point, it is a device that thwarts even substantial political majorities ensuring that both parties have a fair say and that we always have a robust opposition. Doing away with it makes the minority party in the Senate irrelevant, it makes individual Senators irrelevant, and makes them equal to simply a voting automaton like their House comrades, manipulated and controlled by the Majority Leader and Whips. And you would not have liked the Senate of 2000-2006 if it did not have the filibuster. Many on this site criticized Frist for doing that, and many now are the same people demanding it goes away. Representative democracy is ultimately a process that is an end to itself, not a process determined by whether or not we like the outcome. So I for one would rather we stick with whats worked for decades at creating one of the most stable and balanced democratic regimes in human history. Getting rid of the filibuster would be a small step certainly, but a significant step nonetheless in eroding the republican foundations of our governance.
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p>Also while there is not a constitutional basis for the filibuster the tradition dates back to the beginnings of the Congress, when both Houses had it, and this itself was based on the British Parliament where it had long been used as a delaying tactic on legislation in the House of Commons. It was started by Cato the Younger who would often give long winded speeches to delay votes on bills he disliked since business had to conclude by dusk, and by speaking until then he could delay votes, often indefinitely as he was probably one of the most gifted extemporaneous speakers in history. We molded our own upper House after the Senate. All of the founders were classically educated, fluent in Greek and Latin, and knew their Roman history quite well. Ours was the first body since Rome to be called a ‘Senate’, the faces behind the dais to the individual seats all show some of the architectural features linking our Senate to the Roman one. The House eliminated it during the 1840s and 50s because the slavery debate had become too acrimonius and delayed votes on spending bills that had to be passed immediately. The Senate has continued it to the present day. I would agree that it is a bit of a joke currently, since minority caucses under both Reid and McConnell have not held traditional filibusters but instead simply had cloture votes to require the 2/3rs threshold. Instead by restoring the traditional filibuster we would force the minority to have to continually speak to delay motions, and that would not only be a restoration of a more defensible and honorable filibuster, but would also add more to the substantial policy debate.
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p>Until then label the GOP as the obstructionists they are, vote them out, and give us a filibuster proof majority if you are so confident that the American people are tired of these tactics. Until then I for one am glad it acts as another check on government and a defense of minority, state, and individual rights.
…that I don’t like the filibuster any better when we’re in the minority. If there is true debate the other side should certainly have its say, but if they want real effect on policy they can win the next election.
…regardless of how well it might have “worked” in the past the current minority has so grossly abused the tactic that it cries out for reform. The makeup of the Senate by definition protects the minority; it doesn’t need even more obstructions.
Joan Vennochi out did herself today. A terrific title to her column that tells a story that illustrates and illuminates the teeny tiny mind of the person who occupies the same seat of John Quincy Adams and Ted Kennedy.
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p>He’s speaking tomorrow at a ceremony honoring John Quincy Adams — I bet her comes out firmly against slavery too. Advocates against today’s version of Human Trafficking should get to him fast before he forgets.
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