Saturday, March 26, 2005

Judicial nominees and a short history of the filibuster

If you are like me and are very interested in seeing President Bush's judicial nominees confirmed by the US Senate (over the hysterical objections of Ted Kennedy and Barbara Boxer), you need to check out this web site called Confirm Them

When the Senate comes back from the Easter recess, they will consider the Constitutional option, stopping debate regarding judicial nominees by a majority vote, instead of a three-fifths vote.

Here are some facts the people should know about the history of the United States Senate's filibuster:

(1) From 1789 through 1805, the United States Senate operated on a simple majority basis, enacting 19 rules by majority vote. Senators could conclude debate on an issue by addressing the presiding officer in the following way: "Shall the previous question be put to the Senate?" If a majority of the Senate voted "Yes" then the Senate would immediately vote on the item that they were debating.

(2) The filibuster was unintentionally created in 1806 when Vice President Aaron Burr deleted the "previous question motion" rule. The filibuster wasn't "discovered" by creative Senators until decades later, however.

(3) The first filibusters were conducted by opponents of President Andrew Jackson in the 1830s. The issue that provoked these filibusters were a move to remove Jackson's censure by Congress for withdrawing funds from the Bank of the United States.

(4) It wasn't until 1917 when the Senate enacted another rule allowing for Senators to stop debate over an issue. The motivating factor behind the enactment of this "cloture" rule was outrage among the American public and President Wilson over the inability of the full Senate to vote on the Armed Ship Bill. Eleven United States Senators, led by Wisconsin Republican Robert La Follette, filibustered the proposed American response to Germany's intention to commence unrestrained submarine warfare in the high seas.

President Wilson said that the "Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible."

(5) Thomas Walsh (Democrat Senator from Montana) led the fight for a rule that would allow the Senate to stop debate and proceed to a vote. Walsh argued that, based on Article 1 - Section 5 of the United States Constitution, the Senate could enact such a rule by a majority vote. One March 8, 1917, the Senate enacted, by a vote of 76 to 3, a compromise cloture rule that would stop debate if two-thirds of Senators present and voting supported cloture.

(6) The two-thirds requirement for cloture had the effect of defeating numerous civil rights bills. Examples include anti-lynching bills in 1922, 1935 and 1938. Over the decades, senators such as Prescott Bush (President George W. Bush's grandfather) Hubert Humphrey, George McGovern, Jacob Javits, Walter Mondale and others sought to reduce the cloture requirement to three-fifths from two-thirds. It wasn't until 1975, however, until this was accomplished.

(7) In 1975, Walter Mondale (Democrat-Minnesota) and James Pearson (Republican-Kansas) led the fight for a three-fifth's cloture rule using the "Constitutional option," meaning that they believed that debate over the Mondale-Pearson proposal could be brought to an end by a simple majority vote. Other Senators believed that debate over this cloture rule proposal could only be brought to an end by satisfying the cloture rule in effect from previous Senates: by winning the support of two-thirds of the Senate.

Senator Javits moved to "table" [defeat] Senator Mike Mansfield's point of order against the Mondale-Pearson cloture proposal because it was "self-executing" by demanding an immediate vote without satisfying the two-thirds cloture rule. Vice President Nelson Rockefeller, acting as presiding officer of the Senate, issued a ruling that if a majority of the Senate voted for Senator Javits's "tabling motion," the Senate could proceed immediately to a vote on the Mondale-Pearson cloture rule proposal. The Senate upheld the Mondale-Pearson "Constitutional option" on three separate occasions during the period from February 1975 through March 1975. After more parliamentary maneuvering, the Senate enacted the three-fifths cloture rule by a vote of 56 to 27 on March 7, 1975.

Concluding thoughts

If a simple majority of United States Senators are determined to change Senate rules, there is little that can stop them from doing so. It is, however, important that the Vice President by sympathetic to the cause of the majority, since the Vice President is the Senate's presiding officer and can issue rulings on whether a question is debatable or non-debatable, endless debate being the tool of opponents of rule changes.

So keep this in mind when the Senate gets back into session and President Bush's judicial nominees become a hot topic of contention.