Both Parties Must Agree to No Supreme Court Filibusters

Thursday, 22 Apr 2010 08:09 AM

By Lanny Davis

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As President Barack Obama prepares to nominate a Supreme Court justice to replace John Paul Stevens and Republicans are likely preparing to filibuster someone they consider too liberal, it’s worth remembering the “Gang of 14” and consider the situation that exists today in the Senate.

The result: The shared hypocrisy and double standards of both Democratic liberals and Republican conservatives will be all too obvious.

Recall that in 2004, Senate Democrats in the minority filibustered and refused to permit 10 conservative judicial nominees of then-President George W. Bush to receive an up-or-down vote — i.e., the 60 votes required to shut off their filibuster.

Then-Sen. Trent Lott, R-Miss., threatened to use what he called the “nuclear option” if the Democrats didn’t relent and allow “majority rule.”

That nuclear option would allow the Senate to change its own rules by majority vote — which meant changing a Senate rule requiring a two-thirds vote to change a Senate rule.

Democrats threatened that if that raw power play were attempted, they would use procedural devices to paralyze the Senate. Lott, with only a two-vote Republican majority, backed off.

But then, after the 2004 election, Republicans increased their margin to a more comfortable 10 votes — 55 to 45 for the Democrats (including one independent vote).

With that margin, Majority Leader Bill Frist, R-Tenn., declared he would go forward and exercise the nuclear option to bring back “majority rule” to the Senate, which he said (as did other Republicans) the Constitution required. And both sides prepared for a partisan “nuclear” showdown.

Then something magical happened: A bipartisan solution occurred, requiring mutual trust and intellectual honesty between Democratic and Republican senator-statesmen.

Seven Republicans — Sens. Lincoln Chaffee (Rhode Island), Susan Collins (Maine), Mike DeWine (Ohio), Lindsey Graham (South Carolina), John McCain (Arizona), John Warner (Virginia) and Olympia Snowe (Maine) — joined with seven Democrats: Robert Byrd (West Virginia), Daniel Inouye (Hawaii), Mary Landrieu (Louisiana), Joe Lieberman (Connecticut), Ben Nelson (Nebraska), Mark Pryor (Arkansas) and Ken Salazar (Colorado) — in short, enough Republicans denying the Republicans 51 votes to approve the “nuclear option” and enough Democrats to get to 60 votes to force an end to the Democratic filibuster.

The agreement of the Gang of 14 was based on a simple principle of trust: Each was free to filibuster, and thus to deny an up-or-down vote on a judicial nominee, only in “extraordinary circumstances” — and each was free to define what that meant and each trusted one another to use good faith in determining that definition.

Now fast-forward to the coming vote on President Obama’s nominee to replace Justice Stevens.

Don’t be surprised if suddenly the very same liberal Democrats who in 2005 denounced those Democrats in the Gang of 14 who broke the filibuster suddenly oppose a filibuster and favor majority rule and up-or-down votes.

Similarly, don’t be shocked when the same conservative Republicans who back in 2005 favored majority rule and opposed a filibuster on judicial nominees suddenly in 2010 see great wisdom in the filibuster and requiring 60 votes before a vote can be permitted.

Inconsistent, you say? Hypocrisy, you say? By both parties? Duh, yes.

Even Obama has to answer for this hypocrisy.

On Jan. 30, 2006, then-Sen. Barack Obama voted against cloture (and thus, in favor of continuing the filibuster) to block an up-or-down vote on President Bush’s conservative Supreme Court nominee, Samuel Alito. But 17 Democrats supported cloture, and Justice Alito was confirmed.

It would be refreshing if President Obama did an honest mea culpa for his vote against cloture in the Alito case and called, once and for all, for all Democrats and all Republicans to sign a written pledge that, from now on, they will support majority rule and up-or-down votes and oppose filibusters for judicial nominees — whether they are in the majority or minority in the future.

If anyone can be a mensch by admitting to his previous mistake in voting against cloture concerning Judge Alito, and calling for intellectual honesty and consistency in the future by both parties in opposing the filibuster on judicial nominees — a true “purple nation” moment — it’s Barack Obama.

Indeed, he could call for an end to all filibusters on important legislation, such as healthcare and regulatory reform of financial institutions.

Will liberal Democratic and conservative Republican senators be willing to sign such a pledge, keeping their word regardless of whether they are in the majority or minority in the future?

Don’t hold your breath.


Lanny Davis, a Washington D.C. attorney, served as special counsel to President Clinton from 1996-98 and was a member of President Bush's Privacy and Civil Liberties Oversight Board in 2006-07.

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