Friday, May 20, 2005

Nuclear option debate roundup, day two

I'm watching replays on C-SPAN2 from the action I missed earlier, and it's been interesting. I caught a good portion of it in the afternoon, but I went to see Star Wars: Episode Three this afternoon, and so I'm watching some of the speeches that went on during that period.

In any case, while the first day was clearly in favor of the Democrats, the second day has been more mixed. Granted, I haven't seen Robert Byrd or John Kerry yet (come to think of it, I've barely seen any Democrats today), so we'll see. I must admit, Gordon Smith (R-OR) makes a good case for his side. He sounds very calm, reasonable, and persuasive. There is one flaw with his argument, as there have been with many of the Republican arguments. And that flaw I shall now discuss.

Republicans come from the argument that history shows that judges are not filibustered, and that certain things in the Senate are not filibustered. To some extent they are right, however, Republicans filibustered a total of four judges that I know about in the past 35 years. These filibusters are on Senate record, with Senate votes to prove it. The Abe Fortas filibuster had the effect of filibustering his replacement as associate justice. That filibuster was began by Republican minority whip Robert Griffin of Michigan. That was the only filibuster for quite some time, until 1999, when Robert Smith and Bill Frist began a filibuster against Clinton district court nominee Brian Theadore Stewart. In 2000, those same men led filibusters against Clinton circuit court nominees Richard A. Paez and Marsha L. Berzon.

So, when Smith and others say that tradition guarantees up or down votes, it's not. It's not any more enshrined than the filibuster. Advise and consent simply says that. It doesn't say, hold votes on nominees in every instance. In fact, 62 Clinton nominees, through filibusters, holds, and blue slips, were denied up or down votes, in most cases did not even get a committee hearing. The very seat that Priscilla Owen has been nominated to is open simply because for five years, Republicans blocked Clinton nominees to that seat. Five years. Owen has been held up for two, and now the right wing wants to blow up the Senate.

This isn't more than crying unfair. It's hypocrisy of the rankest sort. It's moving the goalposts to suit your own needs, something that the Senate has traditionally shied away from. The minority has often been strongest in the Senate. It has been the place where we are kept from going over the edge. It was the place where Andrew Johnson was saved from conviction on trumped-up impeachment charges by one vote. It was the place where Richard Nixon's wrongdoings were exposed. It was the place where Bill Clinton was acquitted for impeachment charges that the nation strongly opposed.

For a party to establish a precedent, deny that it ever exists, and refuse to admit to establishing a precedent is dishonest. To then try and eliminate that precedent when it works against them is just as odious. I repeat from earlier comments: this battle would not be necessary if Frist hadn't eliminated the courtesies that truly have been part of the 214-year history of the Senate. Blue slips for home state nominees. Anonymous holds while Senators worked things out. The sorts of courtesies that keep things from being so publicly ugly. Frist eliminated these things in an exercise of raw power. His aide, Manuel Miranda, stole Democratic computer files, so offensively so that Orrin Hatch had him fired. Yet today, Miranda is leading the interest group fight against the filibuster, another poke in the eye to Democrats. The fact that these judges have been renominated is also a poke in the eye to Democrats.

(Speaking of decency and courtesy, the Robert Byrd replay is focusing on that. That man, at his advanced age, still has the ability to make his voice boom when talking about history of the Senate. I'm proud to watch him there. He is quite skilled at oration and when he passes, it will be the end of an era.)

This battle has been built up by a majority of legislators. Let it be known that Democrats represent more people than Republicans do. Republicans have their power from winning less-populated states. Democrat senators hold seats that represent 148 million people, Republicans 144 million. Republicans are disproportionately represented in the Senate, but that's how the place was designed. Fair enough. However, that fact should be recognized, and the minority should be allowed a voice. It's bad enough that the House just tramples on Democrats to where they barely matter, because Tom DeLay has violated every rule in the House book on legislative guidelines. But for the Senate to degenerate like this because a Majority Leader wants absolute power is wrong. It's just plain wrong. It guarantees that the Senate does become a rubber stamp, because any majority will dominate, like it does in the House. At that point, the Congress makes itself irrelevant.

Even Trent Lott, during the Clinton trial, realized that the best thing to do was work with Tom Daschle to make sure things didn't blow up, and all sides could work without being hysterical. Lott, of course, was forced out in 2002, and a man with no appreciation of Senate history took over and tossed in the trash the very things that helped make the Senate work. In fact, most Senators on the Republican side have not served very long, and do not know what it is like to be in the minority. Most of them came right from the House, where trampling the minority is a way of life. This has created a sad situation, and one that the Senate can rectify by voting "no" to the nuclear option. Because if it passes, when Democrats take back the Senate, it will be total war, and that serves no one.


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