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Posted at 3:25 PM ET, 12/28/2010

The filibuster that Republicans don't like

By Ezra Klein

Mike Lee, the Utah Republican who beat Sen. Bob Bennett in the primary, says that the filibuster "ought not apply with respect to judicial nominees." This position goes back to 2005, when Sen. Bill Frist attempted to eliminate the so-called "judicial filibuster" (which is really just a normal filibuster applied to nominees), and there are a lot of Republicans on-record supporting the effort, as well as a lot of Democrats on-record opposing it.

The irony is that if there's any area of the Senate's business where a supermajority-requirement makes sense, it's judicial nominees. Judges, after all, are appointed for life, and impeaching a judge requires 67 votes in the Senate, not to mention a majority in the House. That makes it much harder to reverse a bad decision on a judicial nomination than on an ordinary piece of legislation, which can be overturned with simple majorities in both chambers.

Even so, Lee might find a lot of agreement among Democrats here: The Left didn't much like Frist's effort to protect judges from the filibuster, but they've really not liked the GOP's continuous filibusters against both judicial and non-judicial nominees. If they can get some support from the right for an expedited process for nominations, they might just take it, particularly as the guy who's currently doing the nominating is a Democrat.

By Ezra Klein  | December 28, 2010; 3:25 PM ET
Categories:  Senate  
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Comments

This is simple: filibustering legislation helps Republicans. Filibustering judges helps Democrats, as Republican-appointees to the federal bench tend to be MUCH more conservative than Democratic-appointees to the bench are liberal.

Therefore, it is logical for Sen-elect Lee to support phony supermajority requirements for legislation but oppose that same requirement for judge confirmation.

Posted by: constans | December 28, 2010 3:49 PM | Report abuse

". If they can get some support from the right for an expedited process for nominations, they might just take it, particularly as the guy who's currently doing the nominating is a Democrat."

Oh, don't worry. Nobody would sign up for such a deal unless President Barack Obama went back and renominated all the judges that Senator Barack Obama helped block from 2005 to 2008.

Posted by: krazen1211 | December 28, 2010 3:49 PM | Report abuse

Of course that is how you end up with a Mormon Supreme Court.

Posted by: WmLaney | December 28, 2010 4:03 PM | Report abuse

Well, if the Senator elect is so against filibustering judicial nominees, he can find a few friends and vote for cloture every time his party declares its intent to filibuster. That ought to clear the massive backlog of judicial nominations his party is currently filibustering.

Care to propose odds on this happening?

Posted by: ceflynline | December 28, 2010 4:05 PM | Report abuse

You nailed it ceflynline.... and this pud didn't actually win an election as much as was chosen by the "elite" of Utah in the primary. Joe Miller wanted to do the same in Alaska. Like how when Rome went from a democracy (sort of) to a Ceasar (Ctzar). Nonetheless fun to watch from way out here in t.v. land.

Posted by: WmLaney | December 28, 2010 4:24 PM | Report abuse

Regressive anarchists cannot support any idea od reform in our society. The problems we have are all GOP-engineered programs top cripple a progressive, liberal society the envy of the world before they got their destructive hands on government control in 1969. It has been down hill since then.

http://tinyurl.com/2846qbu

Their agenda is relentless, remorseless and destroying our country.

Posted by: BigTrees | December 28, 2010 4:35 PM | Report abuse

Perhaps the worst abuse, with regard to filibusters and holds, is on Administration appointees, not judges.

I would think that the first order of bipartisan reform would be to allow an elected President to staff his/her administration promptly, and with timely up-or-down votes on all administration appointees. Let there be debate, certainly, but not stasis.

As the White House is virtually guaranteed to change parties on a fairly regular basis, each party stands to gain by this in turn.

Posted by: OldUncleTom | December 28, 2010 4:47 PM | Report abuse

You nailed it ceflynline.... and this pud didn't actually win an election as much as was chosen by the "elite" of Utah in the primary. Joe Miller wanted to do the same in Alaska. Like how when Rome went from a democracy (sort of) to a Ceasar (Ctzar). Nonetheless fun to watch from way out here in t.v. land.
Posted by: WmLaney
**********************
Sorry, the Roman State/Empire was never close to a democracy. At its most egalitarian it was a republic with two very distinct power bases. Is that what you were alluding to?

Posted by: overed | December 28, 2010 5:29 PM | Report abuse

The problem with judicial nominee filibusters is severe enough to mean that 1 in 9 federal judgeships is unfilled. That creates an enormous strain on the other judges, who have to assume greater caseloads. I have the distinct feeling that Republicans are not just gaming the system, i.e., using the judicial filibusters to bargain for other things, but that they are seriously hoping to prolong as many vacancies as possible, in the hope that they recapture the White House in 2012 and can continue a conservative transformation of the federal judiciary.

I would like to see special rules for nominees that would effectively end the current way to filibuster, but still allow for adequate investigation of a candidate. And such rules should put the burden on those objecting to a specific candidate, perhaps along some of the lines of the Merkley filibuster reform proposal: require a certain minimum number of Senators to object to a nominee, allow a limited time for a Committee hearing on such a nominee, and require a floor vote within a certain number days after a passing committee vote. And all of it should have a finite timeline that cannot be derailed, even by a minority party acting in unison. Having nominees wait for 9 or 12 months, without even being accorded a hearing is ridiculous, and it hurts our executive branch and our judiciary in functioning. Of course, that's part of the goal for Republicans, isn't it, except when they're in charge of making the decisions in those branches....

Posted by: reach4astar2 | December 28, 2010 6:10 PM | Report abuse

Uhh, yea.

Posted by: WmLaney | December 28, 2010 7:07 PM | Report abuse

There is a purpose for all these institutions including the filibuster. Best leave them alone.

Posted by: johntu | December 28, 2010 8:32 PM | Report abuse

"There is a purpose for all these institutions including the filibuster. Best leave them alone." And the purpose of filibuster: the party filibustering wants to stall, they are sure the other party is going to get the votes needed to pass a bill and using taxpayer money to stall, hoping they'll either bore the other side so much they'll give up or (as in the case of judges) will be able to stall until they can gain control. Once, again, Repubs are (ab)using the system (like refusing to vote) until they get their way. Never mind that it is costing more taxpayer money while they filibuster; or, that it is putting more burden on the court system and backing up cases even further (and since most of these cases would involve policy changes or cases against corp's that's all the better); or, that the people want this over with and onto something else. It's best for the party if they stall until we (hopefully) deceive the people long enough to get a Repub president back in power. I guess this is Obama's fault too! (Bet you find a way [lie] to make it so.)

Posted by: Indy60 | December 29, 2010 1:31 PM | Report abuse

"There is a purpose for all these institutions including the filibuster. Best leave them alone." And the purpose of filibuster, the party filibustering wants to stall, they are sure the other party is going to get the votes needed to pass a bill and using taxpayer money to stall, hoping they'll either bore the other side so much they'll give up or (as in the case of judges) will be able to stall until they can gain control. Once, again, Repubs are (ab)using the system (like refusing to vote) until they get their way. Never mind that it is costing more taxpayer money while they filibuster; or, that it is putting more burden on the court system and backing up cases even further (and since most of these cases would involve policy changes or cases against corp's that's all the better); or, that the people want this over with and onto something else. It's best for the party if we stall until we (hopefully) deceive the people long enough to get a Repub president back in power. I guess this is Obama's fault too! (Bet you find a way [lie] to make it so.)

Posted by: Indy60 | December 29, 2010 1:32 PM | Report abuse

Ezra: you are not exactly a Consti. analyst. You picked up the Lee statement on Hugh Hewitt's program. Please go to Hugh's site right now, today. You will see that Hugh dissects your un-Const. point and will set you straight on the facts, history and meaning of a filibuster on this very subject that you make look like a Pub bit of ignorance . Please do it Ezra since as a young pup, you think you are the new Ed Murrow but really don't deal much with facts. Go to hughhewitt.com

Posted by: phillyfanatic | December 29, 2010 1:40 PM | Report abuse

No offense Ezra but aren't you just another democrat loving Jewish boy from wherever?

Posted by: info58 | December 29, 2010 2:00 PM | Report abuse

Mr. Klein,

You are smart enough to realize that one's appreciation of the filibuster process rises or falls in direct correlation to the power that individual enjoys. Harry Reid lauded the filibuster when out of power - as evidenced here -

http://www.youtube.com/watch?v=EexSYKaBCFo

and condemns it now while in power. If the Senate flips in 2012, he'll be quite happy to find the filibuster in place, lest he see everything he's passed these last two years trumped and turned over by a simple majority.

Posted by: cartmaneric | December 29, 2010 2:26 PM | Report abuse

Why republicans don’t filibuster these activist judges who serve only to invent new meanings for written law in accordance with their ideology, I’ll never know. Meanwhile, any perceived threat on the part of democrats to the imaginary abortion clause in the Constitution is reason enough for them to filibuster a vote on a judicial appointment.

I would support this filibuster reform. It may give us Dianne Wood for Ginsburg in 2012, but Kennedy has made it clear he will not give Obama the chance to appoint another activist moonbat to his seat. So, I’ll take a Wood for Ginsburg if it gets me another Scalia for Kennedy in 2013.

Posted by: rjcarter3 | December 29, 2010 4:02 PM | Report abuse

WmLaney; The Roman Republic was not a democracy or even a "sort of" one. Senators were chosen by the "elite" patricians. By 55 BC the republic was a shambles. The, by then, private Roman Armies were were payed for by Generals such as Pompey and Caesar. Each vying for ultimate power.

The filibuster is a process that needs to be used sparingly just as it was in the days before the current extremely partisan divide. Currently the purpose of the filibuster has been abused by both parties.

Holds should be completely eliminated. Most holds have been nothing but blackmail that has nothing to do with the person the president has nominated; but are done because a senator wants to shake down the government until the Senator gets what he/she wants.

info58; your bigotry is showing.



Posted by: sfspec | December 29, 2010 4:24 PM | Report abuse

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