Saturday, November 22, 2008

Did the Founders Envision a Filibuster-Proof Congress (Senate) as Being Good for the Republic?

Should Barack Obama Go To Georgia?

By Chris Cillizza

The Fix - Washington Post Political Blog

November 20, 2008, 6:30 pm

UPDATE, 6:30 pm: Barack Obama has cut a new 60-second radio ad in support of former state Rep. Jim Martin's Senate campaign in Georgia. In the ad, which was obtained by The Fix moments ago, Obama thanks everyone who voted for him on November 4 and then adds: "The elections aren't over....I want to urge you to turn out one more time and help elect Jim Martin to the United States Senate."

A radio ad is not a personal visit by the president-elect but Martin's campaign will gladly take it.


Even as President-elect Barack Obama continues to rapidly fill out his White House staff and Cabinet picks, the buzz around whether he will spend some of his prized political capital on behalf of former state Rep. Jim Martin (D) in Georgia continues to grow.

Martin is taking on Sen. Saxby Chambliss (R) in a Dec. 2 runoff occasioned by the fact that the GOP incumbent was unable to win 50 plus one percent of the vote on Nov. 4.

Martin clearly benefited from Obama's presence at the top of the ticket -- particularly in the black community -- and Democrats eyeing a 60-seat filibuster proof majority believe an Obama appearance may be the only way Martin can come close to re-creating the sort of base turnout he needs to beat Chambliss next month.

To date, Obama and his transition team have been non-committal about such a visit so soon after he was elected the 44th president of the United States.

For Obama, it may not make sense to head to Georgia as it would be painted by Republicans -- rightly, so -- as a partisan act inconsistent with the president-elect's post-partisan message. And, if Martin winds up losing, which conventional wisdom suggests he will, then some of Obama's luster will have worn off before he even takes the oath of office.

But, with Democrats currently holding 58 seats, Sen. Norm Coleman's (Minn.) margin over entertainer Al Franken narrowing and polls showing Martin within shouting distance, the pressure on Obama to make a visit to get Democrats to 60 seats in the 111th Congress is sure to increase.

"When you're President of the United States it pays to remember who your friends are," said one senior Democratic operative granted anonymity to speak candidly about the president-elect. "Thinking Barack Obama has anything to risk by campaigning for Jim Martin is like most conventional wisdom -- just plain wrong."

Another Democratic Senate insider was more measured about Obama's impact. "Obama could make a big difference with a visit, but it's not the only way he can help," said the source. "Fundraising or appearing in ads would be enormously beneficial to Martin as well."

Obama is already an issue in the runoff campaign as Martin is attacking Chambliss in a television ad for his opposition to the "Obama economic recovery plan." The ad's narrator adds: "Jim Martin will help Barack Obama cut taxes for the middle class and get our economy moving again."

The Martin campaign is also recycling a radio ad that Obama did for them in the general election. (It began airing Tuesday in the state.)

During the campaign, Obama turned down a series of requests for appearances or television ads in support of Democratic candidates -- picking and choosing only a few races in which to engage.
The most prominent was the television ad Obama cut in support of Oregon Sen.-elect Jeff Merkley; he also lent his voice to a radio ad for Rep.-elect Jim Himes in Connecticut.

Whether Obama travels to Georgia may well depend heavily on whether he views the Senate contest as the last race of 2008 or the first race of 2010.

Because Obama did take the time to lend his voice to radio ads for Martin during the campaign, his political operation could well point those ads -- and the burdens of filling out a new government between now and January 20 -- as reasons why he simply can't make the time to come down to the Peach State.

If Georgia is seen as the first race of the 2010 cycle, however, Obama could use it as an opportunity to flex his political muscles for Republicans (and Democrats) in Congress; if Martin won due to an Obama visit, there would be significant trepidation -- among vulnerable Democrats and Republicans -- to cross his legislative priorities


Georgia’s US Senate runoff has broader political importance

By Patrik Jonsson Staff writer

Christian Science Monitor

November 19, 2008 edition

The post-election vote could tighten Democrats’ grip on Capitol Hill while giving GOP stars a chance to shine.


The last voters in the historic 2008 election headed back to the polls in Georgia on Tuesday, ready to decide the extent of the Democrats’ grip on Washington and give Republican standard-bearers clues as to how to operate as outsiders.

“I don’t mind voting again,” says Democrat James Cato, an Atlanta travel agent, braving a brisk morning to file an early vote for the Dec. 2 runoff between Republican incumbent Saxby Chambliss and Democratic challenger Jim Martin. “I tend to come out when I feel my vote is really going to count.”

The Senate runoff between two former University of Georgia fraternity brothers is the first election after Barack Obama won the presidency. It’s become increasingly important as Democrats won the Alaska recount this week, putting them within two seats of gaining a 60-seat filibuster-proof majority in the Senate. That makes the Georgia runoff the last seat to be decided by voters as the disputed Minnesota race now heads to a recount.

As the GOP’s current panoply of stars – Gov. Sarah Palin, Mitt Romney, and Mike Huckabee – prepare to stump for Mr. Chambliss, the Georgia runoff has become a stage for potential Republican national candidates to find their footing, hone their messages, and begin formulating the answer to a vexing question: How to marshal the vaunted independent vote and rebuild the party from what Duke University political scientist Michael Munger calls “the smoking ruins.”

GOP stars play to larger audience

“This is the first quick election after the Obama victory,” says Mr. Munger. “So when we see these people coming in and trying out messages … they’re trying out messages for a larger stage.”

To be sure, that stage is looking dusty, even in this Republican shoo-in state. “The really bad thing for Republicans is that there’s any runoff at all – this was thought to be a completely safe seat,” says David Rohde, also a Duke election expert. “For the Republican party and for the way each party can see itself in the national context, it has a lot of implications.”

It’s personal between Chambliss and Mr. Martin, who have run a series of highly negative ads attacking each other’s characters and associations.

Chambliss, who was first swept into office as part of the Republican revolution in 1994, is having an image crisis of his own making – testing even Republicans’ patience. At a recent Senate hearing, he defended corporations by berating a safety whistle-blower. Many conservative Georgians are upset about Chambliss’s support for the $700 billion Wall Street bailout.

“A major part of the advertising from [Chambliss] is that this [runoff] is now the front line for the battle of ideological control of the nation,” says Charles Bullock, a political science professor at the University of Georgia in Athens. “So if you’re a conservative and worried about what the Democrats may do with the White House and [Congress], here’s where you could make a difference.”

Martin faces his own challenges.

Chambliss seems to be winning points by drawing Martin into a debate over a “fair tax” proposal that shows some promise as a future Republican drawing card.

Still, says Munger, “The Republicans are demoralized, it’s hard to get partisans out, and Democrats could win by a ton of votes.” Thus, the parade of stars on behalf of Chambliss.

Last week, Zell Miller, the former Democratic senator who blasted John Kerry at the 2004 Republican convention, stumped for Chambliss. “I don’t like this ‘spread the wealth,’” Mr. Miller told a raucous partisan crowd. “To steal from Peter to pay Paul, even if it gets Paul to vote for you, is wrong, wrong, wrong.”

John McCain, Mr. Huckabee and Mr. Romney split the Republican ticket by thirds in the Georgia primary, with Huckabee eking out the win. Former Arkansas governor and pastor Huckabee now has a show on Fox News; Romney is the economic strategist and corporate turnaround artist; and Ms. Palin, who had a rough entry into national politics, can also find a stage in Georgia unshackled from McCain.

Party unity is being tested

They all appeal to various strands of the fractured GOP coalition. But the question, especially in light of the primary results, is whether one of them can unite the GOP.

They’re likely to test their chances in Georgia, says Napp Nazworth, a political science lecturer at the University of Georgia. Huckabee’s message is, “I’m conservative, but I’m not angry about it,” says Mr. Nazworth. For Palin, he says, “it depends on her being able to reinvent herself as someone who can appeal beyond the base.”

For their part, Democrats have been begging Mr. Obama to come, but he has so far demurred. But Bill Clinton was scheduled to speak at Clark Atlanta University on Wednesday, providing a foil to the Republican heavyweights.

Victor Davis Hanson, a political commentator and classics professor at the University of California, Fresno, says the runoff here will give clues as to how deep the Republican dilemma really runs, and who might be best to carry the GOP standard forward.

“For now,” Mr. Hanson writes in an e-mail, “Republicans can’t agree whether (1) much needs changing ideology-wise … since many conservative ballot measures passed, or (2) Democratic success … proves that the [Republican] base and its ideas are hopelessly unappealing to growing numbers of youth, minorities, and women, or (3) the conservative message is fine but needs to be repackaged for the times with better spokespeople.”


NRA backs Chambliss in U.S. Senate runoff


The Atlanta Journal-Constitution

November 19, 2008

The National Rifle Association on Wednesday threw its support behind incumbent Republican U.S. Sen. Saxby Chambliss in Georgia’s Dec. 2 runoff, saying he fears Democratic challenger Jim Martin would help erode Second Amendment protections for gun owners.

“We’re going to have some real battles in Washington,” Wayne LaPierre, executive vice-president of the NRA, said Wednesday morning in Atlanta before traveling to Perry for a Chambliss rally.

LaPierre, speaking to reporters at Chambliss’s Cobb County headquarters, said he thinks President-elect Barack Obama will “break his promise” to protect gun rights. And he said that if Martin is elected, the Atlanta attorney and former state lawmaker will help hasten the erosion of gun rights in the United States.

Martin’s campaign immediately rejected that idea, saying Martin is a strong supporter of the Second Amendment.

“Jim supports the Second Amendment and will protect the rights of all law-abiding citizens to bear arms,” said Martin spokesman Matt Canter. “Saxby Chambliss is the one who wants to raise taxes on guns and ammunition with his support of a national sales tax.”

The NRA has about 150,000 members in Georgia and about 4 million nationwide.

LaPierre was in town a few hours before former President Bill Clinton arrives in Atlanta to campaign for Martin.

“That’s the same Bill Clinton who for eight years tried to destroy our rights,” NRA executive director Chris Cox said.

The Georgia Senate runoff is attracting a lengthening line of political A-listers as Democrats push for a 60-vote, filibuster-proof “super majority” in the upper chamber and Republicans pull out all stops to hold Chambliss’s seat.

The possibility of a 60-vote majority shot up overnight as Republican U.S. Sen. Ted Stevens lost his seat in Alaska to a Democrat. The Democrats now have 58 seats - only races in Minnesota and Georgia have to be decided.

“If the Minnesota race is lost and this race is lost, they (Democrats) will have a blank check,” Chambliss told reporters and about three dozen gun-rights supporters who attended LaPierre’s endorsement.

Charles Bogle Jr., 75 of Sandy Springs came up to shake LaPierre’s hand at the end of the press conference.

“Don’t give up,” Bogle, a gun owner and hunter, told the NRA official.

“I won’t,” LaPierre replied. “This thing is going to be a battle. They (Democrats) are going to break their promises.”

Bogle said he fears a Democratic congress and president will work together to raise taxes on guns and ammunition. He said he thinks they will also place additional restrictions on gun ownership and tighten registration requirements.

“They will take them away from us,” Bogle said. “These people scare me to death.”


Georgia Senate runoff crucial to nation: Chambliss re-election may prevent a filibuster-proof Democratic majority

Augusta Chronicle Editorial Staff

November 14, 2008

So you thought the election was over? No way. One of the most important elections of the year is taking place right here in Georgia in the runoff between Republican U.S. Sen. Saxby Chambliss and challenger Jim Martin.

The race is important enough for President-elect Barak Obama to flood the state with "community organizers," including 15 sent to Augusta, to get out the vote for Martin.

And Republicans are sending in heavy hitters to stump for Chambliss, including John McCain, Sarah Palin and Mike Huckabee.

The stakes couldn't be higher. There are still undecided Senate races in Alaska, Minnesota and Georgia. If all three go Democratic -- and the first two are trending that way -- Democrats will have a filibuster-proof majority in the Senate, giving Majority Leader Harry Reid and House Speaker Nancy Pelosi, both far-out liberals, unbridled congressional power, even if Obama disagrees with them.

This is why the re-election of Chambliss is a must. He may be all that stands between the American people and congressional tyranny.


Democrats hopeful about filibuster-proof Senate

By Paul Kane

Washington Post

Posted: 11/13/2008 06:50:04 PM PST

WASHINGTON — In a strange turn of events, the Democrats' pursuit of a filibuster-proof majority in the Senate — left for dead after last week's election results — now is back on course.

The road to 60 seats will now go through an Anchorage election office, the Minnesota state courts, a runoff in Georgia next month and, ultimately, a tense caucus meeting next week in which Democrats must deal with a renegade lawmaker who is making noise about crossing the aisle to join Republicans.

"Let me beat you to the punch: Will we get 60 seats?" said Sen. Chuck Schumer, D-N.Y., chairman of the Democratic Senatorial Campaign Committee, cutting off reporters Thursday before they could ask the question everyone wants answered. "It's possible, but unlikely."

This seemed impossible last week, when Democrats appeared to gain six seats, to reach 57 for the 111th Congress starting in January, failing to secure a filibuster-proof majority for President-elect Barack Obama.

Now, the terrain has changed in the three remaining undecided Senate races, where Republican incumbents finished ahead on election night but local rules have given Democrats the chance to add one to three seats to their majority.

In Alaska, Anchorage Mayor Mark Begich pulled 814 votes ahead of Republican Sen. Ted Stevens late Wednesday night after officials tallied 59,000 votes that included absentee, early and questionable ballots whose validity was verified.

An additional 40,000 votes are set to be counted in the days ahead.

Final results are expected Wednesday, with a certified winner Dec. 1. That is one day before the runoff election in Georgia, where Republican Sen. Saxby Chambliss led initial voting but did not clear the required 50-percent mark. As a result, he must once again face Democratic former state representative Jim Martin.

The most legally complex battle is in Minnesota, where a recount process is about to start amid echoes of the controversial Florida 2000 presidential recount. Democrat Al Franken remains 206 votes behind Republican Sen. Norm Coleman. More than 24,000 ballots that electronically recorded votes in the presidential race but did not record any vote in the Coleman-Franken contest will now be examined, and legal challenges have been lodged. Hundreds of attorneys on both sides are volunteering to help resolve the dispute.

So, more than a week after Election Day, the Democratic and Republican senatorial camps are furiously raising money for ads and get-out-the-vote efforts in Georgia and for attorneys in Minnesota.

The first sign of clarity may come in Alaska. There, almost 100,000 ballots were left to count after the Nov. 4 election, mostly because the state's absentee-voter laws allowed ballots to be postmarked up until that day.

If the race is decided by less than 0.5 percent, the loser can ask for a state-funded recount, which would not be complete until January.

But Democrats have their own internal dispute that could derail their pursuit of 60 seats as early as next week.

Some Democrats want to punish Sen. Joe Lieberman, a Connecticut independent, who caucuses with them, for his support of the GOP presidential ticket by stripping his chairmanship of a key committee. But Lieberman has balked at such a move, amid whispers that he would instead caucus with Republicans.


Democrats Near Filibuster-Proof Senate

By Lindsey Chapman

Finding Dulcinea – Internet Librarian

November 5, 2008

Democrats recorded considerable gains in Election 2008. With the 111th Congress in place, what will its members work on first?

Votes Still Left to Be Counted (and Recounted)

Democrats are still waiting to learn whether they will gain enough seats in the 2008 election to have a filibuster-proof Senate. But even if they don’t hold 60 seats, they “were within reach of a working coalition on major policy issues,” according to The New York Times.

Republican losses like those by Elizabeth Dole in North Carolina and John E. Sununu in New Hampshire helped the Democratic cause.

But a few more cliffhangers remain undecided. In Minnesota, Republican Sen. Norm Coleman and Democratic challenger Al Franken will have to wait awhile longer for the final results of their race. Early Wednesday, Coleman was ahead by less than 1,000 votes out of the 2.9 million-odd ballots cast, a margin small enough to require a recount under Minnesota law, according to the Associated Press.

Minnesota Secretary of State Mark Ritchie said the recount could last into December. “No matter how fast people would like it, the emphasis is on accuracy,” he said.

Meanwhile, Alaska Sen. Ted Stevens holds a slim lead over Anchorage mayor Mark Begich, with 99 percent of Alaska’s precincts reporting. Another 40,000 absentee ballots remain to be counted, though. If he wins, Stevens will be the first senator found guilty of criminal charges to be re-elected to office, the Boston Herald wrote.

Analysis: Hoping for a filibuster-proof Senate

Sources in this Story

o The New York Times: Senate Races Hang in Balance; Democrats Gain
o findingDulcinea: Elizabeth Dole Loses Senate Seat to Democrat Kay Hagan
o AP Pulls Result of Minnesota Senate Race
o Boston Herald: Sen. Ted Stevens holding thin margin in Alaska
o The Austin American-Statesman: Democrats strive for filibuster-proof Senate
o The Oregonian: Smith warns of a "Pres. Obama with no brakes"
o MarketWatch: Broken Congress will have chance to fix itself
o findingDulcinea: Ted Stevens to Seek Re-election Despite Conviction
o International Herald Tribune: In U.S. Congress, Democrats reap substantial gains

In the days before the election, Republicans, Democrats and political analysts were eyeing the possibility of a “filibuster-proof Senate,” according to The Austin American-Statesman.

With 23 of 49 seats up for re-election, Senate Republicans had more work to do this year than the Democrats, who only had 12 of their 51 seats to protect. Both parties were interested in maintaining their influence “because the Senate can make or break a presidency,” the paper reported.

Opinion: Things to fix

The possibility that one party could dominate both houses of Congress and the White House was worrisome to some election candidates. Sen. Gordon Smith, the Republican incumbent in Oregon, warned, “One-party dominance, a blank check, no checks and balances, could be a very unfortunate thing for our country,” according to Jeff Mapes of The Oregonian.

The new Congress has a “poor image” to repair, writes Robert Schroeder of MarketWatch. Some of the first issues lawmakers will be expected to address are the economy and the Iraq War, along with corruption scandals such as the case involving Alaska Sen. Ted Stevens.

“What they need is the appearance of dealing with and finding solutions to the nation’s toughest problems,” Stuart Rothenberg of the Rothenberg Political Report told MarketWatch.

The House of Representatives will also have “more maneuvering room” with Democrats picking up additional seats there, the International Herald Tribune reported. Analysts had predicted that a gain of 30 seats was possible, but it appeared the party would fall short of that number the day after the election.

Speaker of the House Nancy Pelosi, D-Calif., said the Democrats’ gains could “increase bipartisanship, civility and fiscal responsibility,” she was quoted as saying by the International Herald Tribune.


Senate Races Hang in the Balance


New York Times

November 5, 2008

It will probably be weeks before Democrats learn the scope of their collective triumph in the Senate races on Tuesday, with doubts remaining about the outcome in four states. But it was clear on Wednesday that the party had picked up at least five seats in the chamber, building a commanding advantage where they held only a razor-thin 51-49 margin before the election.

Republican incumbents clung to the barest of leads in Minnesota, Oregon and Alaska, and will probably face a runoff election in Georgia on Dec. 2. A recount loomed in the Minnesota race, where Senator Norm Coleman led his Democratic challenger, the comedian-turned-politician Al Franken, by fewer than 600 votes out of nearly 3 million cast.

But there was no doubt that Democrats had ousted Republican incumbents in New Hampshire and North Carolina and had captured seats in Virginia, Colorado and New Mexico that were being vacated by Republicans.

From the White Mountains of New Hampshire to the Rocky Mountains in the West and the glaciers of Alaska, Democratic candidates rode a wave of dissatisfaction with Republicans and the Bush administration, and mounted competitive challenges to many a formerly safe Republican seat, surprising even their own party leaders in some cases.

For all their success, however, the Democrats appeared to fall several seats short of the 60-vote majority that would enable them to push bills to a vote by overcoming filibusters. And it appeared that they had failed to topple one of their biggest targets, Senator Ted Stevens of Alaska, the longest-serving Republican in Senate history, despite Mr. Stevens’s recent conviction for violating federal ethics laws.

With 99 percent of Alaska’s precincts reporting, Mr. Stevens was ahead of Mark Begich, the mayor of Anchorage, by 48.2 percent to 46.7 percent, with the remaining votes going to fringe candidates. Since thousands of absentee ballots remained to be counted, the final outcome may not be known for days. Should Mr. Stevens indeed prevail, and should he reject the many calls for his resignation, the Senate would probably vote on whether to expel one of its members for the first time in many decades.

In the Minnesota race, the margin separating Mr. Franken and Mr. Coleman was slight enough to set the stage for a recount under state law.

“Let me be clear,” Mr. Franken said. “This race is too close to call, and we do not yet know who won.” He said his goal in demanding a recount was “to ensure that every vote is properly counted.” The results of the recount are not expected to be known for weeks.

Another contest still undecided by Wednesday morning was in Oregon, where Senator Gordon Smith, a Republican, led his Democratic challenger, Jeff Merkley, by less than one percent.

Even if none of the four remaining unsettled races goes the Democrats’ way, the party’s gains on Wednesday put it within reach of a working Senate coalition on major policy issues, given the defeat of the Republican incumbents John E. Sununu of New Hampshire and Elizabeth Dole of North Carolina, and the election of former Gov. Mark Warner in Virginia as well as the congressmen-cousins Mark Udall in Colorado and Tom Udall in New Mexico.

The Democrats’ triumph began with frustration over the war in Iraq and broadened into fury and dismay over economic turmoil at home, with home prices falling, unemployment on the rise and consumer confidence shattered. But even as the Democrats celebrated their early victories on Tuesday night, one of their most highly prized targets proved out of reach: the Senate Republican leader, Mitch McConnell of Kentucky, beat back a serious challenge by Bruce Lunsford, a wealthy businessman.

Winston Churchill once said that the most exhilarating feeling in life is to be shot at — and missed,” Mr. McConnell said in a victory speech in Louisville. “After the last few months, I think what he really meant to say is that there’s nothing more exhausting.”

At the headquarters of the National Republican Senatorial Committee in Washington, the mood on Tuesday night was less exhaustion than glumness. A handful of young aides milled around watching election returns on Fox News until Senator John Ensign of Nevada, the committee’s chairman, emerged to make a brief statement.

“Obviously we expected this sort of night,” Mr. Ensign said. “The political winds, I’ve said for some time, were blowing in our face.”

“We caught a very, very tough cycle,” he added, “tougher than even Watergate was.”

Mr. Ensign and other Republican senators have made no secret of their desire that Mr. Stevens resign because of his conviction for accepting but not reporting gifts related to extensive remodeling of his Alaska home. The senator has wielded great power because of his senior seat on the Appropriations Committee, commanding respect and sometimes fear.

The Senate has expelled only 15 members since 1789, most for supporting the Confederacy. In recent years, senators who have run afoul of the law have generally resigned rather than face expulsion, a step that requires 67 votes. Mr. Stevens said after his conviction that he would not step down voluntarily.

But even without a filibuster-proof majority, and without a defeat of Mr. McConnell or Mr. Stevens to crow about, Democrats were jubilant nonetheless.

“The days of obstruction are over,” said Senator Charles E. Schumer of New York, chairman of the Democratic Senatorial Campaign Committee. “And in a bipartisan way, we in the Senate and our colleagues in the House will work together to turn America in the right direction after eight long years.”

Since winning control of the Senate in 2006, the Democrats have had little breathing room, holding their 51-to-49 edge only because two independents, Senators Bernard Sanders of Vermont and Joseph I. Lieberman of Connecticut, chose to caucus with them. Mr. Lieberman has consistently voted against the Democrats on bills related to the Iraq war and national security, giving Republicans and President Bush an edge on those issues.

Now Mr. Lieberman, a close ally of Senator John McCain, faces considerable uncertainty about where he stands with the Democratic caucus; some colleagues have talked about stripping him of his post as chairman of the Homeland Security and Governmental Affairs Committee because his vote is no longer essential to their majority.

In New Hampshire, the Democrat, former Gov. Jeanne Shaheen, defeated Mr. Sununu in a bitter rematch of their 2002 contest by repeatedly tying him to President Bush on the war, national security, economic policies and energy. She becomes the first female senator in the state’s history and the first Democrat elected to the Senate from New Hampshire in more than 28 years.

Mrs. Shaheen, 61, capitalized on a huge transformation of the electorate in recent years that has shifted the state solidly into the Democratic column. Mr. Sununu, who at 44 is the youngest senator, had hoped to ride Mr. McCain’s coattails, but found himself battling alone as support for Mr. McCain dissipated and Senator Barack Obama opened up a wide lead in most polls.

In North Carolina, Kay Hagan, a little-known state senator, dealt a stunning defeat to Mrs. Dole, a former Transportation secretary and Republican candidate for president who has one of the most famous names in modern Republican politics.

Ms. Hagan portrayed Mrs. Dole — the wife of the former Senate majority leader and presidential candidate, Bob Dole — as a Washington insider and suggested that she had fallen out of step with the people of her state. Mrs. Dole, in turn, was unable to counter the rising enthusiasm for Mr. Obama among the state’s Democrats. Nor was she helped by running a campaign advertisement on television that labeled Ms. Hagan “godless.”

In Virginia, Mr. Warner, a popular former governor, had been heavily favored all year. He easily defeated another former governor, James S. Gilmore III, to succeed Senator John W. Warner (no relation), who is retiring after five terms as one of the Republican Party’s most respected voices on military affairs.

The Democrats came into the 2008 contests benefiting from a clear numerical advantage, with just 12 seats to defend, compared with 23 for the Republicans. And while five of those Republican seats were left vacant by retirees, every one of the dozen Democratic incumbents up for re-election chose to run for another term.

In one bright spot for Republicans, Senator Susan Collins of Maine easily beat back a challenge by Representative Tom Allen, a Democrat whose campaign fizzled even as Mr. Obama won the state by a sizable margin.

In another, Senator Saxby Chambliss of Georgia appeared to pull ahead in his race against Jim Martin, a former Democratic state legislator, and a minor-party candidate, the Libertarian Allen Buckley. But it appeared that Mr. Chambliss would fall just short of winning the 50 percent of the vote required for election under Georgia law, necessitating a runoff against Mr. Martin on Dec. 2.

Mr. Chambliss could have an advantage in such a runoff, since Mr. Martin probably benefited from a coattail effect with Mr. Obama on the top of the ticket on Tuesday. On the other hand, President-elect Obama and his political advisers could use their influence against Mr. Chambliss, who unseated the Democrat Max Cleland in a bitter contest six years ago.

In South Dakota, Senator Tim Johnson, a Democratic incumbent who nearly died of a brain hemorrhage two years ago, easily won re-election. His victory was dramatically different from his 2002 triumph, when he defeated then Representative John Thune by a mere 524 votes in the closest Senate race in the country. (Mr. Thune, a Republican, was elected to the Senate in 2004, ousting Senator Tom Daschle, the Democratic leader.)

Bernie Becker and David Stout contributed reporting from Washington, and Jack Healy from New York.


A Liberal Supermajority: Get ready for 'change' we haven't seen since 1965, or 1933


Wall Street Journal

October 17, 2008

If the current polls hold, Barack Obama will win the White House on November 4 and Democrats will consolidate their Congressional majorities, probably with a filibuster-proof Senate or very close to it. Without the ability to filibuster, the Senate would become like the House, able to pass whatever the majority wants.

Though we doubt most Americans realize it, this would be one of the most profound political and ideological shifts in U.S. history. Liberals would dominate the entire government in a way they haven't since 1965, or 1933. In other words, the election would mark the restoration of the activist government that fell out of public favor in the 1970s. If the U.S. really is entering a period of unchecked left-wing ascendancy, Americans at least ought to understand what they will be getting, especially with the media cheering it all on.

The nearby table shows the major bills that passed the House this year or last before being stopped by the Senate minority. Keep in mind that the most important power of the filibuster is to shape legislation, not merely to block it. The threat of 41 committed Senators can cause the House to modify its desires even before legislation comes to a vote. Without that restraining power, all of the following have very good chances of becoming law in 2009 or 2010.

- Medicare for all. When HillaryCare cratered in 1994, the Democrats concluded they had overreached, so they carved up the old agenda into smaller incremental steps, such as Schip for children. A strongly Democratic Congress is now likely to lay the final flagstones on the path to government-run health insurance from cradle to grave.

Mr. Obama wants to build a public insurance program, modeled after Medicare and open to everyone of any income. According to the Lewin Group, the gold standard of health policy analysis, the Obama plan would shift between 32 million and 52 million from private coverage to the huge new entitlement. Like Medicare or the Canadian system, this would never be repealed.

The commitments would start slow, so as not to cause immediate alarm. But as U.S. health-care spending flowed into the default government options, taxes would have to rise or services would be rationed, or both. Single payer is the inevitable next step, as Mr. Obama has already said is his ultimate ideal.

- The business climate. "We have some harsh decisions to make," Speaker Nancy Pelosi warned recently, speaking about retribution for the financial panic. Look for a replay of the Pecora hearings of the 1930s, with Henry Waxman, John Conyers and Ed Markey sponsoring ritual hangings to further their agenda to control more of the private economy. The financial industry will get an overhaul in any case, but telecom, biotech and drug makers, among many others, can expect to be investigated and face new, more onerous rules. See the "Issues and Legislation" tab on Mr. Waxman's Web site for a not-so-brief target list.

The danger is that Democrats could cause the economic downturn to last longer than it otherwise will by enacting regulatory overkill like Sarbanes-Oxley. Something more punitive is likely as well, for instance a windfall profits tax on oil, and maybe other industries.

- Union supremacy. One program certain to be given right of way is "card check." Unions have been in decline for decades, now claiming only 7.4% of the private-sector work force, so Big Labor wants to trash the secret-ballot elections that have been in place since the 1930s. The "Employee Free Choice Act" would convert workplaces into union shops merely by gathering signatures from a majority of employees, which means organizers could strongarm those who opposed such a petition.

The bill also imposes a compulsory arbitration regime that results in an automatic two-year union "contract" after 130 days of failed negotiation. The point is to force businesses to recognize a union whether the workers support it or not. This would be the biggest pro-union shift in the balance of labor-management power since the Wagner Act of 1935.

- Taxes. Taxes will rise substantially, the only question being how high. Mr. Obama would raise the top income, dividend and capital-gains rates for "the rich," substantially increasing the cost of new investment in the U.S. More radically, he wants to lift or eliminate the cap on income subject to payroll taxes that fund Medicare and Social Security. This would convert what was meant to be a pension insurance program into an overt income redistribution program. It would also impose a probably unrepealable increase in marginal tax rates, and a permanent shift upward in the federal tax share of GDP.

- The green revolution. A tax-and-regulation scheme in the name of climate change is a top left-wing priority. Cap and trade would hand Congress trillions of dollars in new spending from the auction of carbon credits, which it would use to pick winners and losers in the energy business and across the economy. Huge chunks of GDP and millions of jobs would be at the mercy of Congress and a vast new global-warming bureaucracy. Without the GOP votes to help stage a filibuster, Senators from carbon-intensive states would have less ability to temper coastal liberals who answer to the green elites.

- Free speech and voting rights. A liberal supermajority would move quickly to impose procedural advantages that could cement Democratic rule for years to come. One early effort would be national, election-day voter registration. This is a long-time goal of Acorn and others on the "community organizer" left and would make it far easier to stack the voter rolls. The District of Columbia would also get votes in Congress -- Democratic, naturally.

Felons may also get the right to vote nationwide, while the Fairness Doctrine is likely to be reimposed either by Congress or the Obama FCC. A major goal of the supermajority left would be to shut down talk radio and other voices of political opposition.

- Special-interest potpourri. Look for the watering down of No Child Left Behind testing standards, as a favor to the National Education Association. The tort bar's ship would also come in, including limits on arbitration to settle disputes and watering down the 1995 law limiting strike suits. New causes of legal action would be sprinkled throughout most legislation. The anti-antiterror lobby would be rewarded with the end of Guantanamo and military commissions, which probably means trying terrorists in civilian courts. Google and would get "net neutrality" rules, subjecting the Internet to intrusive regulation for the first time.

It's always possible that events -- such as a recession -- would temper some of these ambitions. Republicans also feared the worst in 1993 when Democrats ran the entire government, but it didn't turn out that way. On the other hand, Bob Dole then had 43 GOP Senators to support a filibuster, and the entire Democratic Party has since moved sharply to the left. Mr. Obama's agenda is far more liberal than Bill Clinton's was in 1992, and the Southern Democrats who killed Al Gore's BTU tax and modified liberal ambitions are long gone.

In both 1933 and 1965, liberal majorities imposed vast expansions of government that have never been repealed, and the current financial panic may give today's left another pretext to return to those heydays of welfare-state liberalism. Americans voting for "change" should know they may get far more than they ever imagined.

A Filibuster Proof Congress

Posted by Chris Miller

August 28, 2008 08:40AM

While most of us are looking at the presidential race between Barack Obama and John Mccain, few are paying attention to the various races going on in Congress and particularly in Harry Reid's Senate. At this moment 23 Republican senators up for re-election that the parrty will have to assist and support. The Democrats have but 12 seats up for re-election.

There are 435 House seats up for re-election. Currently the Democrats control 235 seats while the Republican have 199 seats. There is one vacancy. This year there were three special elections held and the Democrats won all three including the seat held by former speaker Dennis Hastert in a strong Republican district. The Republicans hope to regain their majority position or at least gain additional seats.

What many voters are unaware of is that the Democrats are spending as much money on the Congressional races as they are on the Presidential race. The reason for this is that the Democrats are determined to obtain a filibuster proof Congress. This would mean that the real power would be in the hands of Reid and Pelosi no matter who becomes the president. If that happens I believe that this nation would become a complete socailist nation, a path we have been on since the Great Depression and the era of FDR.

When the Democrats took power in 1932 they had a filibuster proof Congress for the first time in the nation's history. The citizens had elected a very liberal Democrat, some say fascist, as president. Roosevelt proposed and Congress approved that massive and expensive program known as the New Deal that called for massive subsidies of farmers something that we still do today. It increased the bureaucracy of the Federal Government that simply continues to grow. Roosevelt was also bold enough to attack the Supreme Court calling for a major alteration of that body. In the process of all of this he created the administrative state that enhanced the power of the Federal Government over the citizens.

Flash forward to November of 1963. In that month John Kennedy was assassinated and Lyndon Johnson was sworn as President of the United States. Johnson was the Democrat presidential nominee in 1964 and this nation, still weeping over the death of Kennedy, not only elected Johnson, they gave him, for the second time in our history, a filibuster proof Congress. With that in place Johnson declared that we would be able to afford guns and butter. He placed this nation on a path to disaster with a welfare program he called "THE WAR ON POVERTY". We spent trillions of dollars on this welfare state and in the process of all this generosity damn near broke the bank while reducing the population of the inner cities to a dependant class that was not changed until 1994 when the Republicans took over the House and forced Bill Clinton to sign Welfare Reform legislation.

Now we have a Democrat Party that is looking to put into place, for the third time in our history, a filibuster proof Congress. Harry Reid will not need to have 60 Democrat Senators because with the RINOs there he will be able to pick off the likes of Olympia Snow, Susan Collins, or Arlene Specter to get legislatlion passed contrary to the good of the nation and its people. Reid and Pelosi will become the KingPins of Congress and will have THE ONE in the White House. The question, therefore, is where do you think we will be in two to four years of an Obama administration with a filibuster proof Congress.

I would remind you that until he joined forces with Hitler, Benito Mussolini was beloved by the likes of Franklin Roosevelt and Winston Churchill. The national and world press wrote glowingly of Mussolini. He even came to the US and made a movie. Roosevelt was compared to him to the point that his advisors had to remind FDR that that was not a good thing. Now we have in Barack Obama and others who call themselves Progressives. Their goal, to turn us into a socialist state. With a filibuster proof Congress that is possible. So along with the presidential race bear in mind that the Congressional races are just as important as the presidential maybe even more so.


Schumer urges filibuster-proof Senate for Dems: Calls for party to add to slim Senate cushion

By Kevin Flynn

Rocky Mountain News

August 27, 2008

PEPSI CENTER -- Hillary Clinton’s New York Senate colleague urged the party to work for a filibuster-proof upper house to help usher Democratic programs through Congress next year.

“Barack Obama cannot do it alone,” said Sen. Charles Schumer, chair of the Democratic Senatorial Campaign Committee. “Without a strong Democratic majority in the Senate, is ambitious agenda will be thwarted by the defenders of the status quo whose goals can be boiled down to a single word: No.

“Without a large Democratic majority, President Obama might even have to pare back the breadth and strength of what he proposes.

“We know what John McCain and his friends in the Senate will do, because we’ve seen it far too many times in the last two years. Ninety-two times, they filibustered important legislation to change the direction of this country.”

Currently there are 49 Democrats and 49 Republicans in the 10-member Senate, but two independents, Bernie Sanders of Vermont and Joe Lieberman of Connecticut, caucus with the Democrats to give them a nominal 51-member majority.

But under Senate rules, legislation can be stopped from moving forward unless 60 members vote to end debate.

There are 35 Senate contests in November. Twenty-one are held by Republicans, and Schumer said Democrats are hopeful of picking up several of them.

“There are 17 states where we have a good chance to beat Republicans,” he said, including retiring Colorado Sen. Wayne Allard’s seat, long held by Republicans. “This is, ladies and gentlemen, a once in a generation opportunity.”


A Filibuster-Proof Congress? A sinkhole has opened under Congressional Republicans

By Mona Charen

March 28, 2008

There are dozens of reasons for John McCain to be gloomy this spring. So many of the structural factors at work in this election redound to his disadvantage. To name just a few: 1) he seeks to succeed a very unpopular two-term president of the same party; 2) he is a member of a body (Congress) whose approval ratings are even lower than those of the president; 3) poll after poll suggests that Republican identification among voters is plunging; 4) the economy is skidding; 5) money is cascading into Democratic sacks and only trickling into Republican hands; and 6) large majorities (66 percent in a recent poll) say they think the country is on the wrong track — a number that does not bode well for the party holding the White House.

And yet, McCain is riding high because the two Democratic front-runners are chewing each other’s ankles and actually drawing blood. And there is every reason to believe that Hillary Clinton and Barack Obama will hold their mutual death grip for several more weeks or even months — pointing out for voters the other’s unfitness to serve as president. It’s a long way to November, but it is certainly possible now to envision how McCain could come out on top.

What seems less foreseeable is a concomitant revival in the fortunes of Congressional Republicans. While national attention has focused on the presidential race, a sinkhole has been opening under the Republicans in Congress. The Democratic Congressional Campaign Committee and its Senate counterpart have reportedly raised $66 million for this election cycle so far. The Republican committees have raised $20 million. While the seesaw is somewhat righted by fundraising by the Republican National Committee ($22 million versus only $3 million for the Democrats), the rest of the picture is pretty alarming for Republicans.

As Jonathan Salant of Bloomberg news reports, Democrats had more cash on hand at the start of 2008 in 31 of the 41 most competitive House and Senate races. And Republican House members keep doing something that increases the Democrats’ chances — resigning. A total of 26 incumbent Republican members of Congress have announced their intention not to seek reelection this year whereas only five Democrats have done the same. This almost reaches the record set in 1952, when 27 incumbents left the Capital. Former Speaker of the House Denny Hastert left office midway through his term. In a special election to fill his seat in a Republican district that voted 55 percent for Bush in 2004, Democrat Bill Foster won with 52 percent of the vote.

The public holds Congress in low esteem, but this is not apparently harming the party in control as much as it is Republicans. An ABC News/Washington Post poll found that 54 percent of respondents preferred to see Democrats maintain control of Congress in 2008. The current balance is 51-49 in the Senate and 233-198 (4 vacant) in the House.

Among the Senate seats Republicans may have trouble holding are the open seats in Virginia, New Mexico, and Colorado. Also considered vulnerable because their states are trending more liberal are incumbents John E. Sununu of New Hampshire, Norm Coleman of Minnesota, Gordon H. Smith of Oregon, and Susan Collins of Maine. In order to obtain the magic number of 60 — a veto-proof majority — the Democrats will have to win nine contests. That’s a tall order, but far from out of the question.

Some of the talk about excitement on the Democratic side — particularly the focus on huge disparities in voter turnout — is simply an artifact of this year’s close contest between Clinton and Obama. Voters in many primaries who hadn’t shown up in past years did so in 2008 because their votes really mattered. On the other hand, the party identification and fundraising numbers are sobering.

It would be nearly impossible for the minority party in Congress to run on its own platform (like the Contract with America) in a presidential year. Republicans therefore find themselves in the peculiar position of having to hope for salvation from a “maverick” who has never been much of a party man. But in this strange year, anything is possible.


Excerpts: The Senate Filibuster Debate

George Mason University’s History News Network


In the course of the opening Senate debate concerning the nomination of Priscilla Richman Owen to be U.S. Circuit Judge for the Fifth District senators frequently invoked history. Excerpts follow.

Bill Frist, Senate Majority Leader (R-TN)

In the last Congress, for the first time in history a minority of Senators obstructed the principle of a fair up-or-down vote on judicial nominees. That was unprecedented. Never in 214 years of Senate history had a judicial nominee with majority support been denied an up-or-down vote. Yet it happened--again, and again, and again, and again, and again, and again. A minority of Senators denied an up-or-down vote not just once to one nominee but 18 times on 10 individual nominees. ...

I have to believe the Senate will make the right choice. We will choose the Constitution over obstruction. We will choose principle over politics. We will choose votes over vacillation. And when we do, the Senate will be the better for it. The Senate will be, as Daniel Webster once described it: ". . . a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels."

To realize this vision, we don't need to look as far back as the age of Webster or Clay or Calhoun. All we must do is look at the recent past and take inspiration from the era of Baker, Byrd, and Dole. For 70 percent of the 20th century, the same party controlled the White House and the Senate. Yet during that period, no minority ever denied a judicial nominee with majority support an up-or-down vote on this floor. Howard Baker's Republican minority didn't deny Democrat Jimmy Carter's nominees. Robert Byrd's Democratic minority did not deny Republican Ronald Reagan's nominees. Bob Dole's Republican minority did not deny Democrat Bill Clinton's nominees. These minorities showed restraint. They respected the appointments process. They practiced the fine but fragile art of political civility. Sure they disagreed with the majority at times, but they nonetheless allowed up-or-down votes to occur.

Harry Reid, Minority Leader (D-NV)

Mr. President, the majority leader said that during the Dole years, Clinton nominees were treated fairly. Sixty-nine Clinton nominees were not even given the decency of a hearing. They never saw the light of day. We have participated in hearings. The matters have come to the floor. For my friend to say that Clinton was treated fairly under the Dole years is simply untrue....

The first filibuster in the Congress happened in 1790. It was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress. Since then, the filibuster has been employed hundreds and hundreds and hundreds of times. It has been employed on legislative matters. It has been employed on procedural matters relating to the President's nominations for Cabinet and sub-Cabinet posts. And it has been used on judges for all those years. One scholar estimates that 20 percent of the judges nominated by Presidents have fallen by the wayside, most of them as a result of filibusters....

A conversation between Thomas Jefferson and George Washington I believe describes the Senate and our Founding Fathers' vision of this body in which we are so fortunate to serve. Jefferson asked Washington: "What is the purpose of the Senate?" Washington responded with a question of his own: "Why did you pour that coffee into your saucer?" Jefferson replied: "To cool it." To which Washington said: "Even so, we pour legislation into the senatorial saucer to cool it."

That is exactly what the filibuster does. It encourages moderation and consensus, gives voice to the minority so cooler heads may prevail. ...

I spoke yesterday about Senator Holt and his 1939 filibuster to protect workers' wages and hours. There are also recent examples of the filibuster achieving good. In 1985, Senators from rural States--even though there were few of them--used the filibuster to force Congress to address a major crisis in which thousands of farmers were on the brink of bankruptcy. In 1995, 10 years later, the filibuster was used by Senators to protect the rights of workers to a fair wage and a safe workplace.

I cannot stand here and say the filibuster has always been used for positive purposes. It has not. Just as it has been used to bring about social change, it was also used to stall progress that this country needed to make. It is often shown that the filibuster was used against civil rights legislation. But civil rights legislation passed. Civil rights advocates met the burden. It is noteworthy that today, as I speak, the Congressional Black Caucus is opposed to the nuclear option--unanimously opposed to it. ...

For 200 years, we have had the right to extended debate. It is not some ``procedural gimmick.'' It is within the vision of the Founding Fathers of this country. They did it; we didn't do it. They established a government so that no one person and no single party could have total control.

Some in this Chamber want to throw out 214 years of Senate history in the quest for absolute power. They want to do away with Mr. Smith, as depicted in that great movie, being able to come to Washington. They want to do away with the filibuster. They think they are wiser than our Founding Fathers. I doubt that is true....

For further analysis, let's look at Robert Caro. He is a noted historian and Pulitzer Prize winner, and he said this at a meeting I attended. He spoke about the history of the filibuster. He made a point about its legacy that was important. He noted that when legislation is supported by the majority of Americans, it eventually overcomes a filibuster's delay, as a public protest far outweighs any Senator's appetite to filibuster.

But when legislation only has the support of the minority, the filibuster slows the legislation--prevents a Senator from ramming it through, and gives the American people enough time to join the opposition....

The Senate is now being threatened with a fundamental change through a self-inflicted wound. ``Master of the Senate'' author Robert Caro recalled an important chapter in the Senate and the Nation's history. Consider this and contrast it with what is happening here today.

When Senator Lyndon Johnson of Texas left the Senate, he was the most powerful majority leader in the history of this country. When he was elected Vice President with President Kennedy and he was preparing to leave the Senate, he told his protege and successor, Senate Mansfield of Montana, that he, Johnson, would keep attending the Democratic luncheons and help his successor as majority leader in running the Senate. Senator Mansfield said no, Vice President Johnson was no longer a Member of the Senate, but an officer of the executive branch and by means of that office was accorded the privilege of presiding over the Senate.

What a contrast Senator Mike Mansfield's respect for the separation of powers and checks and balances is from those in power today. I say that as one who was privileged to serve here with Senator Mansfield. Instead, this White House took an active role in naming the present Senate leadership and this White House regularly sends Vice President Cheney and Karl Rove to Republican caucus luncheons to give the Republican majority its marching orders. What a difference from the days of Mike Mansfield and Lyndon Johnson.

Arlen Specter (R-PA)

As a starting point, it is important to acknowledge that both sides--Democrats and Republicans--have been at fault. Both claim they are the victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun so many different ways that my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, there are ``lies, damn lies, and statistics,'' would be amazed at the creativity employed by both sides in contriving numbers in this debate.

In 1987, upon gaining control of the Senate and the Judiciary Committee, the Democrats denied hearings to seven of President Reagan's circuit court nominees and denied floor votes for two additional circuit court nominees. As a result, the confirmation for Reagan circuit nominees fell from 89 percent prior to the Democratic takeover to 65 percent afterwards. ...

A well-known story is told about Benjamin Franklin. Upon exiting the Constitutional Convention in Philadelphia, he was approached by a group of citizens asking what sort of a government the constitutional delegates had created. Franklin responded, ``A Republic, if you can keep it.''

In this brief response, Franklin captured the essential fragility of our great democracy. Although enshrined in a written Constitution and housed in granite buildings, our government is utterly dependent upon something far less permanent, the wisdom of its leaders. Our Founding Fathers gave us a great treasure, but like any inheritance, we pass it on to successive generations only if our generation does not squander it. If we seek to emulate the vision and restraint of Franklin and the Founding Fathers, we can hand down to our children and grandchildren the Republic they deserve, but if we turn our backs on their example, we will debase and cheapen what they have given us.

At this critical juncture in the history of the Senate, let us tread carefully, choose wisely, and prove ourselves worthy of our great inheritance. Since the United States and the Union of Soviet Socialist Republics avoided a nuclear confrontation in the Cold War by concessions and confidence-building measures, why should not Senators do the same by crossing the aisle in the spirit of compromise?...

Patrick Leahy (D-VT)

What the White House ignores is that President Bush completed his first term with the third highest total of confirmed judges in our history--in our history--and more Federal judges on the courts than at any time in our history. The truth is, Senate Democrats have cooperated extensively in confirming more than 95 percent of this President's judicial nominees--208 of them.

George Washington, the most popular and powerful President in our history, was not successful in all of his judicial nominations. The Senate rejected President Washington's nomination of John Rutledge to be Chief Justice of the Supreme Court. For example. And certainly I would hope that the current President would not assume he stands higher in our history books than George Washington.

The truth is, in President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton's two terms, more than during the term of this President's father, and more than Ronald Reagan's first term when he had a Republican majority in the Senate. By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to its lowest level, lowest rate, and lowest number in decades, since President Ronald Reagan was in office. ...

How can any Senator look himself or herself in the mirror if they weaken the Senate, if they allow the Senate to no longer be the check and balance it should be? Why would anyone want to serve here if they come to this body with that in mind?

James Madison, one of the Framers of our Constitution, warned in Federalist Number 47 of the very danger that is threatening our great Nation, a threat to our freedoms from within: "[The] accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny."

That is what they are trying to do, put all the power into one hand. All of us should know enough of history to know we should not do that. George Washington, our great first President, reiterated the danger in his famous Farewell Address to the American People: "The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism."

Now, our freedoms as Americans are the fruit of too much sacrifice to have the rules broken in the Senate, especially to break them in collusion with the executive branch. What ever happened to the concept of separation of powers?...

Charles Schumer (D-NY)

The Senator from Tennessee, our majority leader, who got on the floor earlier today and said for 214 years there have not been filibusters of judges, has a very short memory. I asked him this morning, Did you not, on March 8, 2000, vote in favor of a filibuster of Richard Paez to the Ninth Circuit Court of Appeals? Here is a copy of the vote. Voting no: Frist, Republican of Tennessee. Did he think it was unconstitutional then? He said on the floor, in answer, Well, some are successful, some are not. I have never known the Constitution to say that something is unconstitutional if it fails and constitutional if it succeeds.

One out of every five Supreme Court nominees did not make it to the Supreme Court. That is part of the tradition of this country. Should the Senate have majority say? No. Should we have the say the majority of the time? No. Should we have the say some of the time? Yes. And there is the balance. The more a President consults, the more the President nominates moderate nominees, the more likely his nominees will succeed.

Dianne Feinstein (D-CA)

I think John Adams, in 1776, made it very clear on the point of checks and balances and an independent judiciary, when he said:

"The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon on upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checked upon that . . . [The judges'] minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men."

Now, that is the clearest statement of intent from our Founding Fathers, that the judiciary should be and must be independent. That is what is being eroded with the partisanship and with the nuclear option. The Senate was meant to play an active role in the selection process. The judiciary was not solely to be determined by the executive branch. Last week, I described how, in the Constitutional Convention, the first effort put forward was actually to have the Senate nominate and appoint judges. Then it was later on, with the consideration of others, changed to allow the President to nominate. But the explanation in the Federalist Papers is all centered around the Senate having the real power to confirm, and that power is not a rubberstamp....

I pointed out earlier where, in 1881, President Hayes nominated a gentleman to the Supreme Court. That was successfully filibustered throughout President Hayes' term. When President Garfield then came into office, he renominated the individual, and the Senate then confirmed that individual. But that does not negate the filibuster. It was the first recorded act of a filibuster of a judicial nominee, and it, in fact, took place and was successful for the length of President Hayes' term.


Conservative and Republican Concern and Opposition to the “Nuclear Option” [ELIMINATING FILIBUSTERS]

George Will in Newsweek (December 6, 2004):

The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut. Conservatives, who do not think government is sufficiently inhibited, should cherish this blocking mechanism. And someone should puncture Republicans' current triumphalism by reminding them that someday they will again be in the minority.

The promiscuous use of filibusters, against policies as well as nominees, has trivialized the tactic. But filibusters do not forever deflect the path of democratic government. Try to name anything significant that an American majority has desired, strongly and protractedly, but has not received because of a filibuster.

Former Senators Jim McClure (R-ID) and Malcolm Wallop (R-WY) in the Wall Street Journal (March 15, 2005):

“Conservatives, in and out of the Senate, are now being assured that this extraordinary approach will not be applied to the legislative filibuster, which, in the not-so-distant past, was our only defense against the excesses of a bipartisan liberalism. There are several problems with that argument. First and foremost, as a matter of principle, we should not accept the contrary-to-fact assertion that the Senate and its rules do not continue from election to election.

Second, setting aside principle -- ouch! -- it is naive to think that what is done to the judicial filibuster will not later be done to its legislative counterpart, whether by a majority leader named Reid, or Clinton, or Kennedy.

Third, even if a senator were that naive, he or she should take a broader look at Senate procedure. The very reasons being given for allowing a 51-vote majority to shut off debate on judges apply equally well -- in fact, they apply more aptly -- to the rest of the executive calendar, of which judicial nominations are only one part. That includes all executive branch nominations, even military promotions. “

Former Senator Alan Simpson (R-WY) in an appearance on NPR’s The Connection (April 26, 2005): (audio) (transcript)

“They [Republicans] will be out of power one day, and there’ll be tears as big as golf balls streaming down their cheeks as they look and say “we put this in motion and we’re sitting here immobilized, neutered in this game.” I can promise you.”

“But there isn’t a question in my mind that when the Republicans go out of power and they, they’re looking for a protection of minority rights, they’re going to be alarmed and saddened. So when they pull the trigger, the boomerang may not come back for a few years but when it does it will get them right in the back of the neck.”

Former Senator Bill Armstrong (R-CO) quoted in Roll Call (April 25, 2005):

“Having served in the majority and in the minority, I know that it’s worthwhile to have the minority empowered. As a conservative, I think there is a value to having a constraint on the majority.”

Former Senator David Durenberger (R-MN) writing in the Minneapolis Star-Tribune (with former Vice-President Walter Mondale) (May 5, 2005):

“The American people should know that the proposed repeal of the filibuster rule for judicial nominees by majority vote will profoundly and permanently undermine the purpose of the U.S. Senate as it has stood since Thomas Jefferson first wrote the Senate's rules.”

Former Senator Charles “Mac” Matthias (R-MD) writing in the Washington Post (May 12, 2005):

“Make no mistake about it: If the Senate ever creates the precedent that, at any time, its rules are what 51 senators say they are -- without debate -- then the value of a senator's voice, vote and views, and the clout of his state, will be diminished.”

Former Congressman Mickey Edwards (R-OK) quoted in the Washington Post (May 10, 2005):

“It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient.”

“Every president grabs for more power. What's different to me is the acquiescence of Congress.”

Ed Rollins (former aide to Presidents Nixon, Ford, Reagan and H.W. Bush) quoted in the Denver Post (April 10, 2005):,1413,36%257E28203%257E2808623,00.html?search=filter

“The latest gambits - DeLay's proposed inquisition of the federal judiciary and Majority Leader Bill Frist's planned attempt to change the legislative rule on filibusters to ram conservative judicial nominees through the Senate - could further polarize and alienate Americans, says Rollins.”

“’If Republicans change the filibuster rule, there will be nothing that gets done in this town for two years,’ Rollins predicts.”

"’The country is not as concerned about judges as it is about Congress showing some fiscal responsibility and doing what it is supposed to do,’ he says.”

David Hoppe (former Chief of Staff to Sen. Lott (R-MS)) in an appearance on The Journal Editorial Report on PBS (April 1, 2005):

[T]he system is broken. The question is, how do you try and fix the system. I keep going back, as I consider this, to a line from the play A MAN FOR ALL SEASONS, "Richard, after you've cut down all the trees, where will you hide when the devil comes after you?"

That's the problem with the nuclear option, because it will not stop there. The next step when somebody needs it will be to get rid of the filibuster on legislative issues. Say a president seven, eight years in the future decides that his national health care program just has to be done, and they've got the might to make right of 51 senators. Should they get rid of the filibuster on legislative items? That's the way we're headed here if we do it this way.

Christine Todd Whitman, Former Republican Governor of New Jersey and EPA Administrator speaking to Virginia Conservation Network as quoted in the Richmond Times-Dispatch (April 29, 2005):!news&s=1045855934842

“Huge political mistake”

“[I]f the Senate's Democratic minority is stripped of the power to filibuster against Bush picks for the federal courts, it will be ‘portrayed as Republicans trying to railroad through certain ideological justices.’”

Stephen Moore, President, Free Enterprise Fund, Founder and Past-President, Club for Growth writing in the Washington Post (with Wade Henderson, Leadership Conference on Civil Rights) (April 17, 2005):

“What troubles us most is that the "nuclear option" could become a routine tactic for the majority party in the Senate to push legislation through with only a 51-vote requirement for passage. The Senate was always envisioned by the Founders to be the deliberative body in Congress, in which the heated emotions of the moment's debate could cool before new laws or judges were approved. The filibuster and the 60-vote cloture rule are nearly indispensable in facilitating full debate and strong consensus for legislative action.”

“Eviscerating the filibuster would violate the spirit of the Constitution and endanger our rights as individuals against excessive governmental power.”

Michael Hammond, Gun Owners of America (and former General Counsel to Senate Steering Committee [1978-89]) in Kill the Filibuster?

“The reason the Second Amendment is still viable today is, in large part, because of the Senate filibuster.”

“If any Senate rule, at any time, can be eliminated, without debate, by fifty senators, the Senate rules –- all of them –- effectively become meaningless in any context in which they would matter.

The legislative filibuster will die the first time it becomes important –- perhaps in connection with Social Security reform, perhaps after the Democrats regain control of the Senate.”

Mark Mix, President of National Right-to-Work Committee (March 14, 2005):

“For Right to Work supporters, the filibuster rule has been and remains a vital safety net. We would be extremely foolhardy to stand by while anyone, regardless of how good their intentions, proceeds to tear holes in it.

And make no mistake. If a bare majority of senators vote now to eliminate judicial filibusters, legislative filibusters will not stand for long. If the Senate’s presiding officer can rule, with the consent of 51 senators, that only a bare majority vote is needed to end debate on judicial nominees, then he can also rule that only a bare majority is needed to end debate on legislation.
Jim Boulet, Executive Director of English First, in his memo titled: How Liberals Could Thrive in a Post-Nuclear-Option Senate [Oppose the Nuclear Option (web page title)] (March 29, 2005):
“[O]nce such at precedent is established, any legislation which commands the support of 51 but not 60 Senators could provoke a similar request for a ruling that requirements for a supermajority are not ‘in order.’”

“Keep in mind that much of the Democratic "wish list" involves sweeping new legislation which will be heavily supported by the mainstream media. The Republican agenda, by contrast, tends to involve incremental changes to existing programs.”

Linda Chavez, Syndicated Columnist, former Bush nominee for Labor Secretary writing in the Washington Times (April 29, 2005):

“The more I think about it, the more I am convinced Republicans would make a mistake getting rid of the filibuster. Republicans won't be in the majority forever, and they may rue the day they deprive themselves of the ability to block a candidate to some future Supreme Court. Worse, they may end up making themselves look like the heavies instead of forcing the Democrats to take center stage as the real fanatics. Let the filibuster stay -- and force the Democrats to actually use it.”

Judge Kenneth Starr, Former DC Circuit Judge, Former Independent Counsel, Dean, Pepperdine Law School on the CBS Evening News (May 9, 2005):

“It may prove to have the kind of long-term boomerang effect, damage on the institution of the Senate that thoughtful senators may come to regret.”



Text From the Congressional Record

C-Span Congressional Chronicle


Mr. REID. I understand we are in a period for morning business. I will use leader time. Mr. President, I have the greatest respect for my friend from South Dakota, but his assertion of facts is simply without foundation. When the Democrats took the majority in the Senate, I, along with others, said that this was not payback time; we were not going to treat the Republicans the way they treated us during the Clinton years. During those years, they did not have the decency even to have hearings for judicial nominations; they simply left them, 60 in number, in the committee. We thought that was inappropriate, and that is the reason during the time that President Bush has been President--we were in the majority, and we are now in the minority--we have approved 205 judges for President Bush and turned down 10, which is a pretty good record.

For people to say there have not been judicial filibusters in the past is simply without historical foundation. In the early days of this Republic, there was no way to stop a filibuster. The only way one could stop a filibuster on judges or anything else was by virtue of agreeing to stop talking. Many judges were simply left by the wayside. They were talked out and they simply never came forward for a vote before the Senate.

The most noteworthy filibuster of a judge that would require a vote that failed was in 1881. There was a filibuster of a judge that went to a vote. Prior to that time, they never even went to a vote.

It was determined in the Senate in 1970 that it would be appropriate to figure out some way to break a filibuster--on judges, on Cabinet nominations, and on legislation. At that time the Senate changed its rules by a two-thirds vote and had filibusters broken, then, by 67 votes. In the 1960s it was determined that was a burden that was no longer necessary, and it was changed to 60 votes. From that time to today, there has been the ability to break a filibuster by 60 Senators voting.

There have been filibusters since that rule was changed in 1960, filibusters of judges. The most noteworthy, of course, was Abe Fortas. There was a filibuster, and there are wonderful statements in the Congressional [Page: S4043]Record by Howard Baker at that time, who extolled the virtues of the filibuster.

During the time I have been in the Senate there have been filibusters of judges. I can name two that come to my mind: Berzon and Paez. We had a vote to break those here, on the filibuster. The majority leader voted against breaking those filibusters. So we have had votes on many occasions dealing with filibusters of judges. This is no new thing.

What we have to keep in mind is that we, the legislative branch of Government, are separate but equal. That is what checks and balances are all about. The President should not have, from the Senate, a rubberstamp for everything he wants. We have the advise and consent clause in the Constitution and we have the obligation to look at these judges. We have approved 205 and turned down 10. For people to suggest that you can break the rules to change the rules is un-American.

The only way you can change the rule in this body is through a rule that now says, to change a rule in the Senate rules to break a filibuster still requires 67 votes. You can't do it with 60. You certainly cannot do it with 51. But now we are told the majority is going to do the so-called nuclear option. We will come in here, having the Vice President seated where my friend and colleague from Nevada is seated. The Parliamentarian would acknowledge it is illegal, it is wrong, you can't do it, and they would overrule it. It would simply be: We are going to do it because we have more votes than you.

You would be breaking the rules to change the rules. That is very un-American. I ask my friends to look at what is going on in the press. In the Post today, David Broder, a nationwide columnist, talks about how bad it would be. Dick Morris, who certainly is no lapdog for the Democrats, has stated very clearly it would be the wrong thing to do. The political damage would be done to Republicans for many years to come.

This is something we should work out. This is something that should not cause the disruption and dysfunction of our family, the Senate family. If this is done, the Senator from South Dakota is absolutely right; we will be working off the Democrats' agenda. We will let things go forward. Of course, we will let things go forward to take care of the troops and let us make sure the Government is funded. We are not going to do the Gingrich plan.

But things around here work by unanimous consent. Maybe the majority wants an excuse not to complete business because most of their business is a little faulty anyway. But we have worked very hard and showed our good faith in the first quarter of this Congress. We have passed, for example, the class action bill; we passed the bankruptcy bill--both of which were 15 years in the making. These are bills the majority of the Senators on this side of the aisle opposed. But I thought it was appropriate that we do business the way we should be doing business: have people speak, debate the issue, and take your wins and losses as they come. We had a couple of losses. But the fact is, we believe the business of the Senate should be conducted in this manner.
I do not know what is going to happen in the Foreign Relations Committee as it relates to Bolton, but the fact is, that is how things should be decided. They should debate publicly and openly and then make a decision as to whether he is good or bad for the United Nations. They are going to have some more hearings in that regard. I think that is appropriate. But to think that just because you do not get your way that you are going to change the rules is wrong.

I have said once or twice on the Senate floor, when I was a little boy I took a big trip. My brother was 10 or 12 years older than I. He was working for Standard Stations in a place in Arizona. It was a little town. It seemed like a big town coming from Searchlight. It took quite a few hours
to drive over there. I spent a week with my brother. I thought it was going to be a week, but he had a girlfriend and I didn't spend much time with him at all. I spent time with his girlfriend's brother. I could beat her brother in anything--all card games, board games, running, jumping, throwing. But I could never win because he kept changing the rules in the middle of the game. That is what is happening in the Senate. The majority can't get what they want so they break the rules to change the rules.

We believe the traditions of the Senate should be maintained. We believe if you are going to change the rules in the Senate, change them legally, not illegally.

I hope my friends, people of goodwill on the other side of the aisle, will take a very close look at this and see if it is the right thing to do. I think we do have people of goodwill on the other side of the aisle who understand the importance of maintaining the integrity of this body.

As Senator Dole said when asked on Public Radio last week what he thought about the so-called nuclear option, He said: Watch it because we are not going to be in the majority all the time. It will come back--these are my words, not his but the same meaning--it will come back to haunt us because the majority changes all the time.

I think it would be wrong for the Democrats to be able to do what the Republicans are talking about doing. I think it would be wrong for the Republicans to do what they are talking about doing. That is why we, Senator Frist and I, working with our caucus, have to try to tamp down the emotions on this issue and do what we can to bring the Senate family together and do things the right way so we can continue to do legislation.

I spoke to the distinguished majority leader a few minutes ago. We want to do the highway bill. We have the Energy bill. Senator Domenici and Senator Bingaman are working hand in hand, more than they have in many years. They are going to come up with the Energy bill. The Senators are going to bring it to the floor and we will debate it.

As the President was told several days ago by Senator Baucus when they were called to the White House, Senator Baucus said: You do the nuclear option, there will be no Energy bill. That is the way things are and that is wrong.

(Ms. MURKOWSKI assumed the Chair.)



Text From the Congressional Record

C-Span Congressional Chronicle


Mr. THUNE. Mr. President, I rise today in morning business to speak about a matter of great importance, and that is our broken judicial nomination and confirmation process. As Senators, we have sworn to support and defend the Constitution, and on the issue of judicial nominations the Constitution is straightforward. It states that the President nominates judges and the Senate has the duty to give its advice and consent on those nominations. For over 200 years, that is exactly how it worked, regardless of which party was in power.

Over the past 2 years, the Democrat minority has attempted to change the rules and stand 200 years of Senate tradition on its head. The Democrat minority now thinks that 41 Senators should be able to dictate to the President which judges he can nominate. The minority also thinks that it should be able to prevent the rest of the Senate from fulfilling its constitutional duty of voting up or down on judicial nominees.

The Democrats' position is contrary to our Constitution, our Senate traditions, and the will of the American people as expressed at the ballot box this past November. It must stop. [Page: S4042]The advice and consent provision in the Constitution has served us for over 214 years up until the last Congress. That meant that the Senate should vote, and for over 200 years no nominee with majority support has been denied an up-or-down vote in this body, zero.

The Democrats have said that they have confirmed 98 percent of the President's nominees. The actual number is 89 percent. But even at that, are we to say that we are only going to follow the Constitution 89 percent of the time? Furthermore, this Senate's record on dealing with the President's appellate court nominees is the worst for any President in modern history. This President's record of having his appellate court nominees voted on is 69 percent, which ranks him lowest of any President in modern history.

It would be one thing if these nominees did not have the votes for confirmation, but they do. These nominees will have 54 or 55, 56, 57 votes for confirmation. It is wrong to deny them what the Constitution says they deserve and for us to ignore our constitutional responsibility to see that they have an up-or-down vote in this body.

The Democrats have said that it is their prerogative to debate. Well, that is great. Let us debate them on the floor of the Senate. But before they can be debated, a nomination has to be brought to the Senate floor for debate. We have a right to debate under the Constitution in the Senate.
They have also suggested that judges ought to have broad support; that they ought to have more than the necessary 51 votes for the simple majority that has traditionally been the case in the Senate. There is nothing in the Constitution about filibustering judges. There is nothing in the Constitution about requiring a super-majority to confirm judges. If the Founders had wanted judges to get a super-majority vote, they would have put that in there. They did it for treaties, for constitutional amendments, and for overriding a Presidential veto. Clearly, that was not the case with judges. It was the Founders' intention that the Senate dispose of them with a simple majority vote.

The Democrats in the Chamber have said that what we are trying to accomplish is ``the nuclear option,'' suggesting that somehow this is a radical process that we are trying to implement. Well, simply, that is not true. There is nothing nuclear about re-establishing the precedent that has been the case, the practice, and the pattern in this Senate for over 200 years.

What is nuclear is what is being discussed by the Democrats in this body, and that is shutting the Senate down over the issue of judicial nominees, which means important legislation to this country, such as passing a highway bill that will create jobs and growth in this economy, could get shut down, or an energy policy which is important in my State of South Dakota. We have gas prices at record levels, we have farmers going into the field, the tourism industry is starting its season, so we need to do something to help become energy independent. I am very interested in the issue of renewable fuels. I want to see as big a renewable fuels standard as we can get on the Energy bill, but we have to get it on the floor to debate it first. We cannot have these attempts, these threats--and I hope they are just that: threats--because it would be tragic, it would be nuclear, if the other side decided to shut this Senate down over the issue of judicial nominees.
The Democrats in this Chamber have tried to confuse the issue of legislative and judicial filibusters, clearly trying to confuse the public about what this means. Well, what we are talking about is simply the narrow issue of judicial nominees. It is part of this Senate's constitutional responsibility and duty, and we must take it very seriously. However, in the last Congress that became extremely politicized.

What we are talking about again is simply the issue of judicial filibusters. Incidentally, it was the Democrats who last voted on the filibuster in the Senate to do away with it back in 1995. It was a 76-to-19 vote. It had to do with the whole issue, not just judicial but legislative filibusters as well. Many of those Democrats who voted to end the filibuster still serve in this institution today.

The American people see this as an issue of fundamental fairness. They understand that this body's constitutional obligation, responsibility, and duty is to provide advice and consent, and that means an up-or-down vote in the Senate.

The Democrats in the Senate have said that this President's nominees are extreme. There are going to be a couple of them reported out of the Judiciary Committee today. Janice Rogers Brown received 76 percent of the vote the last time she faced the voters in California, which is not exactly a bastion of conservatism. Her nomination in this Senate has been stalled out for 21 months. Priscilla Owen will also be reported out today. She received 84 percent of the vote the last time she faced the voters in Texas. She has been waiting around for 4 years in the Senate to get an up-or-down vote on her nomination. She was endorsed by every major newspaper in the State of Texas. These nominees are not extreme. What is extreme is denying these good nominees a vote, and it betrays the role and responsibility the Founders gave the Senate.

So as we embark upon and engage in this debate that is forthcoming on judicial nominees, let us keep in sight and in focus the facts, and the role and responsibility this institution has to perform its duty. And that is to make sure that when good people put their names forward for public service, they at least are afforded the opportunity that every nominee with majority support throughout this Nation's history has had, and that is the chance to be voted on in the Senate.

I fully support what the other side is saying about wanting to debate these nominees. Let us do it. I am certainly willing and hopeful that we will be able to engage in a spirited and vigorous debate. Let us debate, but then let us vote.

I yield the floor.
Crisis Mode: A fair and constitutional option to beat the filibuster game

By Senator Orrin G. Hatch

National Review Online

January 12, 2005, 7:29 a.m.

Judicial nominations will be one of the most important issues facing the Senate in the 109th Congress and the question is whether we will return to the tradition of giving nominations reaching the Senate floor an up or down vote. The filibusters used to block such votes have mired the judicial-confirmation process in a political and constitutional crisis that undermines democracy, the judiciary, the Senate, and the Constitution. The Senate has in the past changed its procedures to rebalance the minority's right to debate and the majority's right to decide and it must do so again.

Newspaper editorials condemning the filibusters outnumber supporting ones by more than six-to-one. Last November, South Dakotans retired former Senate Minority Leader Tom Daschle, in no small part, because he led the filibuster forces. Yet within hours of his election to succeed Senator Daschle as Minority Leader, Senator Harry Reid took to the Senate floor to defend them. Hope is fading that the shrinking Democratic minority will abandon its destructive course of using filibusters to defeat majority supported judicial nominations. Their failure to do so will require a deliberate solution.


If these filibusters were part of the Senate's historical practice or, as a recent NRO editorial put it, merely made confirming nominees more difficult, a deliberate solution might not be warranted. But this is a crisis, not a problem of inconvenience.

Senate rules reflect an emphasis on deliberation and debate. Either by unanimous agreement or at least 60 votes on a motion to invoke cloture under Rule 22, the Senate must end debate before it can vote on anything. From the Spanish filibustero, a filibuster was a mercenary who tries to destabilize a government. A filibuster occurs most plainly on the Senate floor when efforts to end debate fail, either by objection to unanimous consent or defeat of a cloture motion.

During the 108th Congress, Senate Democrats defeated ten majority-supported nominations to the U.S. Court of Appeals by objecting to every unanimous consent request and defeating every cloture motion. This tactic made good on then-Democratic Leader Tom Daschle's February 2001 vow to use "whatever means necessary" to defeat judicial nominations. These filibusters are unprecedented, unfair, dangerous, partisan, and unconstitutional.

A Political Crisis

These are the first filibusters in American history to defeat majority supported judicial nominations. Before the 108th Congress, 13 of the 14 judicial nominations on which the Senate took a cloture vote were confirmed. President Johnson withdrew the 1968 nomination of Abe Fortas to be Supreme Court chief justice the day after a failed cloture vote showed the nomination did not have clear majority support. In contrast, Democrats have now crossed the confirmation Rubicon by using the filibuster to defeat judicial nominations which enjoy clear majority support.

Focusing on President Clinton's judicial nominations in 1999, I described what has been the Senate's historical standard for judicial nominations: "Let's make our case if we have disagreement, and then vote." Democrats' new filibusters abandons this tradition and is unfair to senators who must provide the "advice and consent" the Constitution requires of them through a final up or down vote. It is also unfair to nominees who have agreed, often at personal and financial sacrifice, to judicial service only to face scurrilous attacks, trumped up charges, character assassination, and smear campaigns. They should not also be held in permanent filibuster limbo. Senators can vote for or against any judicial nominee for any reason, but senators should vote.

These unprecedented and unfair filibusters are distorting the way the Senate does business. Before the 108th Congress, cloture votes were used overwhelmingly for legislation rather than nominations. The percentage of cloture votes used for judicial nominations jumped a whopping 900 percent during President Bush's first term from the previous 25 years since adoption of the current cloture rule. And before the 108th Congress, the few cloture votes on judicial nominations were sometimes used to ensure up or down votes. Even on controversial nominees such as Richard Paez and Marsha Berzon, we invoked cloture to ensure that we would vote on confirmation. We did, and both are today sitting federal judges. In contrast, these new Democratic filibusters are designed to prevent, rather than secure, an up or down vote and to ensure that targeted judicial nominations are defeated rather than debated.

These filibusters are also completely partisan. The average tally on cloture votes during the 108th Congress was 53-43, enough to confirm but not enough to invoke cloture and end debate. Democrats provided every single vote against permitting an up or down vote. In fact, Democrats have cast more than 92 percent of all votes against cloture on judicial nominations in American history.

A Constitutional Crisis

Unprecedented, unfair, and partisan filibusters that distort Senate procedures constitute a political crisis. By trying to use Rule 22's cloture requirement to change the Constitution's confirmation requirement, these Democratic filibusters also constitute a constitutional crisis.

The Constitution gives the Senate authority to determine its procedural rules. More than a century ago, however, the Supreme Court unanimously recognized the obvious maxim that those rules may not "ignore constitutional restraints." The Constitution explicitly requires a supermajority vote for such things as trying impeachments or overriding a presidential veto; it does not do so for confirming nominations. Article II, Section 2, even mentions ratifying treaties and confirming nominees in the very same sentence, requiring a supermajority for the first but not for the second. Twisting Senate rules to create a confirmation supermajority undermines the Constitution. As Senator Joseph Lieberman once argued, it amounts to "an amendment of the Constitution by rule of the U.S. Senate."

But don't take my word for it. The same senators leading the current filibuster campaign once argued that all filibusters are unconstitutional. Senator Lieberman argued in 1995 that a supermajority requirement for cloture has "no constitutional basis." Senator Tom Harkin insisted that "the filibuster rules are unconstitutional" because "the Constitution sets out...when you need majority or supermajority votes in the Senate." And former Senator Daschle said that because the Constitution "is straightforward about the few instances in which more than a majority of the Congress must vote....Democracy means majority rule, not minority gridlock." He later applied this to judicial nomination filibusters: "I find it simply baffling that a Senator would vote against even voting on a judicial nomination." That each of these senators voted for every judicial-nomination filibuster during the 108th Congress is baffling indeed.

These senators argued that legislative as well as nomination filibusters are unconstitutional. Filibusters of legislation, however, are different and solving the current crisis does not require throwing the entire filibuster baby out with the judicial nomination bathwater. The Senate's authority to determine its own rules is greatest regarding what is most completely within its jurisdiction, namely, legislation. And legislative filibusters have a long history. Rule 22 itself did not even potentially apply to nominations until decades after its adoption. Neither America's founders, nor the Senate that adopted Rule 22 to address legislative gridlock, ever imagined that filibusters would be used to highjack the judicial appointment process.


Liberal interest groups, and many in the mainstream media, eagerly repeat Democratic talking points trying to change, rather than address, the subject. For example, they claim that, without the filibuster, the Senate would be nothing more than a "rubberstamp" for the president's judicial nominations. Losing a fair fight, however, does not rubberstamp the winner; giving up without a fight does. Active opposition to a judicial nomination, especially expressed through a negative vote, is the best remedy against being a rubberstamp.

They also try to change the definition of a filibuster. On March 11, 2003, for example, Senator Patrick Leahy, ranking Judiciary Committee Democrat, used a chart titled "Republican Filibusters of Nominees." Many individuals on the list, however, are today sitting federal judges, some confirmed after invoking cloture and others without taking a cloture vote at all. Invoking cloture and confirming nominations is no precedent for not invoking cloture and refusing to confirm nominations.

Many senators once opposed the very judicial nomination filibusters they now embrace. Senator Leahy, for example, said in 1998: "I have stated over and over again...that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported." Since then, he has voted against cloture on judicial nominations 21 out of 26 times. Senator Ted Kennedy, a former chairman of the Judiciary Committee, said in 1995 that "Senators who believe in fairness will not let a minority of the Senate deny [the nominee] his vote by the entire Senate." Since then, he has voted to let a minority of the Senate deny judicial nominees a vote 18 out of 23 times.

Let me put my own record on the table. I have never voted against cloture on a judicial nomination. I opposed filibusters of Carter and Clinton judicial nominees, Reagan and Bush judicial nominees, all judicial nominees. Along with then-Majority Leader Trent Lott, I repeatedly warned that filibustering Clinton judicial nominees would be a "travesty" and helped make sure that every Clinton judicial nomination reaching the full Senate received a final confirmation decision. That should be the permanent standard, no matter which party controls the Senate or occupies the White House.


The Senate has periodically faced the situation where the minority's right to debate has improperly overwhelmed the majority's right to decide. And we have changed our procedures in a way that preserves the minority's right to debate, and even to filibuster legislation, while solving the crisis at hand.

The Senate's first legislative rules, adopted in 1789, directly reflected majority rule. Rule 8 allowed a simple majority to "move the previous question" and proceed to vote on a pending matter. Invoked only three times in 17 years, however, Rule 8 was dropped in the Senate rules revision of 1806, meaning unanimous consent was then necessary to end debate.

Dozens of reform efforts during the 19th century tried to rein in the minority's abuse of the right to debate. In 1917, President Woodrow Wilson described what had become of majority rule: "The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.... The only remedy is that the rules of the Senate shall be altered." Leadership turned gridlock into reform, and that year the Senate adopted Rule 22, by which 2/3 of Senators present and voting could invoke cloture, or end debate, on a pending measure.

Just as the minority abused the unanimous consent threshold in the 19th century, the minority abused the 2/3 threshold in the 20th century. A resolution to reinstate the previous question rule was introduced, and only narrowly defeated, within a year of Rule 22's adoption. A steady stream of reform attempts followed, and a series of modifications made until the current 60-vote threshold was adopted in 1975. The point is that the Senate has periodically rebalanced the minority's right to debate and the majority's right to decide. Today's crisis, with constitutional as well as political dimensions and affecting all three branches of government, presents an even more compelling case to do so.

These filibusters are an unprecedented shift in the kind, not just the degree, of the minority's tactics. After a full, fair, and vigorous debate on judicial nominations, a simple majority must at some point be able to proceed to a vote. A simple majority can achieve this goal either by actually amending Rule 22 or by sustaining an appropriate parliamentary ruling.

A Simple Majority Can Change the Rules

The Senate exercises its constitutional authority to determine its procedural rules either implicitly or explicitly. Once a new Congress begins, operating under existing rules implicitly adopts them "by acquiescence." The Senate explicitly determines its rules by formally amending them, and the procedure depends on its timing. After Rule 22 has been adopted by acquiescence, it requires 67 votes for cloture on a rules change. Before the Senate adopts Rule 22 by acquiescence, however, ordinary parliamentary rules apply and a simple majority can invoke cloture and change Senate rules.

Some object to this conclusion by observing that, because only a portion of its membership changes with each election, the Senate has been called a "continuing body." Yet language reflecting this observation was included in Senate rules only in 1959. The more important, and much older, sense in which the Senate is a continuing body is its ongoing constitutional authority to determine its rules. Rulings by vice presidents of both parties, sitting as the President of the Senate, confirm that each Senate may make that decision for itself, either implicitly by acquiescence or explicitly by amendment. Both conservative and liberal legal scholars, including those who see no constitutional problems with the current filibuster campaign, agree that a simple majority can change Senate rules at the beginning of a new Congress.

A Simple Majority Can Uphold a Parliamentary Ruling

An alternative strategy involves a parliamentary ruling in the context of considering an individual nomination. This approach can be pursued at any time, and would not actually amend Rule 22. The precedent it would set depends on the specific ruling it produces and the facts of the situation in which it arises.

Speculation, often inaccurate, abounds about how this strategy would work. One newspaper, for example, offered a common description that this approach would seek "a ruling from the Senate parliamentarian that the filibuster of executive nominations is unconstitutional." Under long-standing Senate parliamentary precedent, however, the presiding officer does not decide such constitutional questions but submits them to the full Senate, where they are debatable and subject to Rule 22's 60-vote requirement. A filibuster would then prevent solving this filibuster crisis. Should the chair rule in favor of a properly framed non-debatable point of order, Democrats would certainly appeal, but the majority could still sustain the ruling by voting for a non-debatable motion to table the appeal.

Democrats have threatened that, if the majority pursues a deliberate solution to this political and constitutional crisis, they will bring the entire Senate to a screeching halt. Perhaps they see this as way to further escalate the confirmation crisis, as the Senate cannot confirm judicial nominations if it can do nothing at all. No one, however, seriously believes that, if the partisan roles were reversed, Democrats - the ones who once proposed abolishing even legislative filibusters - would hesitate for a moment before changing Senate procedures to facilitate consideration of judicial nominations they favored.


The United States Senate is a unique institution. Our rules allowing for extended debate protect the minority's role in the legislative process. We must preserve that role. The current filibuster campaign against judicial nominations, however, is the real attack on Senate tradition and an unprecedented example of placing short-term advantage above longstanding fundamental principles. It is not simply annoying or frustrating, but a new and dangerous kind of obstruction which threatens democracy, the Senate, the judiciary, and even the Constitution itself. As such, it requires a more serious and deliberate solution.

While judicial appointments can be politically contentious and ideologically divisive, the confirmation process must still be handled through a fair process that honors the Constitution and Senate tradition. If the fight is fair and constitutional, let the chips fall where they may. As it has before, the Senate must change its procedures to properly balance majority rule and extended debate. That way, we can vigorously debate judicial nominations and still conduct the people's business.

The Honorable Orrin G. Hatch is a Republican senator to the United States Senate from Utah. Senator Hatch is former chairman of the Senate Judiciary Committee.


Let Them Filibuster: A Senate rules change may not be wise


National Review Online

December 15, 2004, 7:37 a.m.

Democrats have waged an "unprecedented" campaign against Bush's judicial nominees — to quote an accurate observation that Democratic senator Jon Corzine made in a fundraising letter. They have denied up-or-down votes to several Bush nominees who had the support of a majority of senators. They have made scurrilous charges against nominees. Priscilla Owen was said to be an enemy of women because, as a judge in Texas, she had interpreted a state law to grant parents a stronger right to be notified of their children's abortions than Democrats would like. Democrats sought to breach the confidentiality of Miguel Estrada's work for the Justice Department in a desperate search for embarrassing material on him. The effect of the Democratic campaign, and probably the intent, has been to intimidate some qualified conservative jurists from putting themselves in the line of fire.

So we sympathize with those Republicans who have been proposing to change the Senate rules to make it easier to confirm nominees who have majority support. Nevertheless, we think the idea is a mistake.

Under current Senate procedures, it takes 60 votes to end a debate and move to a vote. It takes 67 votes to change the procedures. Some conservatives argue that the 60-vote rule to cut off debate, when applied to judicial nominations, violates the Constitution. The "advice and consent" of the Senate, they say, implies that it should only take a majority of the Senate to confirm a judge. The use of the filibuster effectively creates a supermajority requirement, which, on this argument, is unconstitutional.

It is, in our view, an implausible argument. The Constitution does not forbid the Senate from setting its own procedures.

Republicans should insist on political accountability for filibusters instead of a rules change.

Conservatives are on stronger ground in arguing that a simple majority of senators should be able to rewrite the rules. But whether it would be prudent for Republicans to act on this insight is another question.

It may be wiser to insist on political accountability for filibusters of judicial nominees than to change the rules to prevent them. In the 2002 and 2004 elections, Republicans took Senate seats from the Democrats. The Democrats' filibusters against Bush's judge picks were an issue in all of them.

The consequences might be worse for the Democrats in the case of a Supreme Court vacancy. Only small portions of the electorate have paid attention to the political battles over appellate-court nominations. The public will be paying attention during a Supreme Court fight. Many voters will root for Bush's nominee and many will root against. But it is unlikely that middle-of-the-road voters will have much tolerance for attempts to block a vote.

Consider the Ashcroft precedent. Liberals were incensed over Bush's nomination of John Ashcroft to be attorney general. They were energized by their strong showing in the 2000 Senate elections and angered by the Florida recount. They demanded a filibuster of Ashcroft. The Democratic Senate leadership refused to take this step, rightly calculating that the public reaction would be negative.

The Democrats will probably not be able to resist the liberal pressure to wage a filibuster when a Supreme Court vacancy arises. But at some point, we strongly suspect that the filibuster would collapse. That collapse would do more for Republicans — and for the cause of confirming conservative judges — than a rules change. (A rules change might demoralize Democrats, but it would also enrage them. An unsuccessful filibuster would just be demoralizing.)

Republicans could change the rules, but they have no constitutional obligation to do so. And the best moment for changing the rules, during a Supreme Court fight, would also be the moment when a change would be least necessary. So let the Democrats filibuster — and pay the price.


U.S. Constitution Online: Answers From the FAQ, Page 7

This page is one of the answer pages for the's Constitutional FAQ. There have been so many questions and answers over the years, that it was best to split them among several files.

Q139. "Why can't I find anything about filibusters in the Constitution?"

A. The short answer is because there is nothing there to find: the Constitution does not contemplate the filibuster in any way, directly or indirectly. So, then, what is all this talk about the Framers, the Senate, the filibuster, and its relationship to the Constitution?

By way of definition, the filibuster is a delaying tactic that is a part of the rules of the Senate. It is a word that comes from the Spanish word for "freebooter," which means "pirate." The origin seems to be that a person who filibusters is plundering the time and focus of a deliberative body, like a legislature. Specifically, in the U.S. Senate, a filibuster is used by a single Senator or group of Senators to stop or delay action on a piece of legislation. It has long been the tradition of the Senate that debate may not be stopped unless those taking up the debate allow it to be stopped. In other words, once a Senator has the floor, he or she may continue to talk forever. This rule goes back to the very beginnings of the Senate.

The Constitution allows each house of Congress to set its own rules. Early on, both houses had unlimited debate provisions. The House of Representatives, however, as a much larger body, found this rule unworkable and rules to limit debate came into effect. The Senate, until recently, never created such a rule. The term for the use of unlimited debate as a legislative tactic became known as a filibuster in the 1850's. The first attack on the filibuster came in 1841, by no lesser a figure than Henry Clay. It survived, though, until 1917, when the Senate adopted a rule allowing a filibuster to be stopped by a two-thirds vote. Such a vote is known as "cloture." Cloture ended the ability of a single Senator to hold up Senate business, but since a two-thirds vote can be difficult to get, it certainly did not stop the filibuster.

In 1975, the two-thirds rule was changed to three-fifths. Today, the three-fifths rule allows cloture on the basis of the vote of sixty Senators. In 2005, the filibuster again came under attack when threats to filibuster judicial appointments prompted calls for a rule change specifically against filibusters on judicial appointments.

So the filibuster has it constitutional origins in the ability of each house of Congress to set its own rules. It has its origins in the framers in that they saw the Senate as a place where extended debate and discussion would have a cooling effect on the actions of the more "heated" House. And it has its origins in the concept ingrained in our political system that the rights of the minority must be protected from the force of the majority.

Standing Rules of the Senate


1. When a question is pending, no motion shall be received but

  • To adjourn.
  • To adjourn to a day certain, or that when the Senate adjourn it shall be to a day certain.
  • To take a recess.
  • To proceed to the consideration of executive business.
  • To lay on the table.
  • To postpone indefinitely.
  • To postpone to a day certain.
  • To commit.
  • To amend.

Which several motions shall have precedence as they stand arranged; and the motions relating to adjournment, to take a recess, to proceed to the consideration of executive business, to lay on the table, shall be decided without debate.

2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks. Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p.m. on the day following the filing of the cloture motion if an amendment in the first degree, and unless it had been so submitted at least one hour prior to the beginning of the cloture vote if an amendment in the second degree. No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.

After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins. The thirty hours may be increased by the adoption of a motion, decided without debate, by a threefifths affirmative vote of the Senators duly chosen and sworn, and any such time thus agreed upon shall be equally divided between and controlled by the Majority and Minority Leaders or their designees. However, only one motion to extend time, specified above, may be made in any one calendar day.

If, for any reason, a measure or matter is reprinted after cloture has been invoked, amendments which were in order prior to the reprinting of the measure or matter will continue to be in order and may be conformed and reprinted at the request of the amendment's sponsor. The conforming changes must be limited to lineation and pagination.

No Senator shall call up more than two amendments until every other Senator shall have had the opportunity to do likewise.

Notwithstanding other provisions of this rule, a Senator may yield all or part of his one hour to the majority or minority floor managers of the measure, motion, or matter or to the Majority or Minority Leader, but each Senator specified shall not have more than two hours so yielded to him and may in turn yield such time to other Senators.

Notwithstanding any other provision of this rule, any Senator who has not used or yielded at least ten minutes, is, if he seeks recognition, guaranteed up to ten minutes, inclusive, to speak only.

After cloture is invoked, the reading of any amendment, including House amendments, shall be dispensed with when the proposed amendment has been identified and has been available in printed form at the desk of the Members for not less than twenty four hours.

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