

Landmark Senate Vote Limits Filibusters - mcgwiz
http://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html?hp&_r=1

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lmkg
For context: The federal court has been perennially over-booked and under-
staffed for a number of years because the confirmations of judges to open
vacancies were being used as political bargaining chips.

Both parties would try to influence the ideological make-up of the judiciary.
Back in the good ol' days when the filibuster was used with some modicum of
restraint, this meant that a minority party could prevent over-ideological
candidates from getting elected. But, over time, the process evolved to the
point where the party out-of-power would try to block _all_ nominations so
that when they were back in-power in several years, they had more vacancies to
fill with their own ideologically-pure candidates.

Purely in terms of government fulfilling its obligated duties to function,
this is an improvement because the judiciary will now become staffed. However,
the lack of a filibuster threat will probably push us away from politically
neutral appointments, towards an alternating (and hopefully balanced over
time?) mix of biases in opposite directions.

tl;dr this is why we can't have nice things.

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srl
I suspect moderates (and more senior folk) in both parties will tend to
threaten a nay-vote on more extreme nominees, both in the interest of having a
sane court system (in the case of moderates), and to avoid provoking
retaliation from the other side (in the case of people who have been around a
long time).

~~~
cpleppert
>>I suspect moderates (and more senior folk) in both parties will tend to
threaten a nay-vote on more extreme nominees

In cases where very ideological nominees have been presented in recent years
there is no evidence that moderates have been prone to block them. So it isn't
clear now what a senator could gain could gain by blocking his own parties
nominee. It would require enough senators from the majority party to switch
and vote against their party and maintain that united opposition against a
candidate whose ideology they agree with simply because they may have qualms
about how extreme his ideology is.

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tdees40
For anyone uninformed on this matter, a few facts:

1) The Senate is a majority body, but it requires a 60 vote (i.e. 60%)
threshold to cut off debate and force a vote on a bill; otherwise, debate
continues indefinitely.

2) In practice, this obviously can lead to the Senate becoming a supermajority
body if filibusters are routinely exercised. In the last 5-10 years, this has
become the case. For instance, this is an example of a bill that "failed"
despite receiving a 54-46 vote.

[http://www.washingtonpost.com/blogs/post-
politics/wp/2013/04...](http://www.washingtonpost.com/blogs/post-
politics/wp/2013/04/17/senate-to-vote-on-amendments-to-gun-bill-with-
background-check-plan-in-doubt/)

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

~~~
bradleyjg
I should also be noted, for non-Americans or extremly ill informed Americans,
that the Senate is already a body that is non-democratic. Every state votes
for two Senators regardless of population. So even under a majority rule,
Senators representing 16.9% of the population can block an appointment. Under
the de facto 60 vote rule, Senators representing only 11% of the population
could do so. To put that 11% in perspective, 13% of the US population is
foreign born, 15.8% are baptist, 13.2% are African-American, and around 10.1%
live in either the NYC or LA metropolitan statistical areas.

There is perhaps an argument to be made about the majority not riding
roughshod over the minority, but in this case the threshold for a blocking
minority was just too small.

~~~
adestefan
The Senate was never meant to be a democratically elected body. Until the
enactment of the 17th Amendment in 1913 Senators where picked by the States.

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

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

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

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

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benjohnson
This is a poor decision - the party in power will be able to appoint
extremists.

This may be temporary pleasing, but at some point the other party will be in
power, with the net result that the judiciary will be filled judges of less
moderation and more politics.

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

~~~
sigzero
I would choose that over the alternative.

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DannyBee
Except it's quickly reaching the point where they don't even have a quorum of
judges.

A number of circuits are having to pull judges from other circuits in order to
decide cases ...

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talmand
Is this problem across the board or just for posts that are life-long
appointments?

I can understand the dilemma over life-long appointments but for judges easily
replaced in the future then I fail to see what the hold-up is about.

~~~
nknighthb
Life tenure is all we're talking about here. It's all that exists in federal
courts of general jurisdiction. Every federal district, circuit, and supreme
court judge appointed by the President and confirmed by the Senate is life
tenure.

Magistrates, who operate only on the district court level (not in the
appellate courts or supreme court), are not Article III judges. They're
appointed by the actual Article III judges without input from the President or
Senate, and they can handle cases only by the consent of both parties, and
their rulings are appealable to an actual Article III district court judge.

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msg
Just a shot across the bow.

If we continue to see blanket obstructionism on legislation, I expect to see
the filibuster limited there too (or made more difficult). That is when the
cannonballs will start flying.

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protomyth
Given Sen Reid's defense of the filibuster and opposition to a rules change in
2005, we basically see that this isn't for the good of the country, it is
basic, bad politics.

The Senate is not supposed to be efficient and the minority party needs to
have a say. It is that simple. People pointing out the good old days, don't
actually remember them.

~~~
ap22213
Given the fact that Reid had voiced such opposition, and since they waited so
long to do it emphasizes the significance of the act. They really didn't want
to do it, but they really had no other choice.

~~~
protomyth
"They really didn't want to do it, but they really had no other choice."[1]

Yes, he had a choice. Leave it the same as the other party did in 2005 and
stop trying to be a modern day Senate version of Thomas Brackett Reed. The
amount of debates that Reid has closed down has been amazing.

The other party will get into power at some point and then Reid will regret
this foolishness and so will we.

1) might as well say "The end will justify the means"

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

~~~
the_watcher
I may be wrong, but I believe Senate rules are set by majority vote, and there
is a mechanism available to the Majority leader to simply declare only 50
votes are needed to pass. The main reason it isn't used all the time is that
the majority party generally worries about repercussions when they are a
minority party.

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

~~~
talmand
If it is limited to Senate rules changes then it's irrelevant. The Senate
rules are, after all, the rules. For example:

Majority wishes to pass a bill that the minority doesn't agree with. Majority
wants to change the rules on that vote to get it passed despite minority.

Minority says they can't because the Senate rules forbid it.

Majority changes rules from forbidding it to allowing it.

Granted, that's a simplistic way of looking at it. It would seem to me that
rule changes should have higher requirements than simple majority because then
the majority can change the rules whenever they wish.

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

~~~
talmand
I totally agree.

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

~~~
talmand
Nothing. These are rules of the Senate so they can be changed at will whenever
they choose. Well, within the rules of the Senate that covers changing the
rules of the Senate.

But since it was done, it'll be easier to repeat it in the future. Which was
why most wanted to avoid doing it over the years.

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

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axus
The argument for not appointing any more appeals judges was that the caseload
was light enough, that no more were needed.

In my opinion, it was right for the Senate to give up a little power here.
They should be exercising more oversight powers in other areas.

~~~
r00fus
The Senate is giving up NO power. The Senate is deciding to act democratically
now, on a simply majority vote, instead of being hobbled by a super-minority,
and only for presidential nominations.

Truly inappropriate nominations (ie, Harriet Myers) can still be blocked by
majority vote.

The entire filibuster was never laid out in the constitution, it's a
convention adopted by the Senate itself and was used ruthlessly by southern
racist senators (both Dem and GOP) to block progressive legislation despite
being popular and wanted by the majority.

~~~
the_watcher
It's also been used (by both sides) to block all kinds of other things, from
tax cuts to tax hikes, debt ceiling increases, defense authorizations, New
Deal legislation, and judicial appointees. As a Senator, President Obama even
voted to filibuster John Roberts appointment, who was fairly universally seen
as a highly competent, qualified nominee as Chief Justice. In short, the
filibuster has been used for the purpose it was designed for (a check on
majority power in the Senate, which was designed to be much more conservative
than the house - whether you like it or not, it's reality), as well as a tool
for partisans and racists to get what they want. So basically, like every rule
or regulation ever formulated.

~~~
greenburger
The cloture rules have changed many times over the years. A quick summary can
be found on the US Senate webpage. However, Originally the filibuster was not
unique to the Senate, House members could also filibuster, and there was no
means of voting to end debate. Obviously this had to change if the House was
to accomplish anything as it grew. One could well argue that it is time for
the rules in the Senate to change again if it is to get anything done.

[1]:
[http://www.senate.gov/artandhistory/history/common/briefing/...](http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm)

~~~
cpleppert
The cloture rules have only had significant changes twice in history. Once in
the 1910s when they were instituted and later in the 1970s. The fact that the
senate requires unanimous consent has nothing to do with any purpose but is
basically a quirk of history that the senate never got rid of the unanimous
consent requirement. What we call a filibuster today is just a use of
withholding unanimous consent to block a motion that would otherwise pass with
a majority vote and isn't related to the use of the filibuster in the 19th
century.

