A Simple Up-or-Down Vote?
In his State of the Union speech (at a point when most people had turned the channel or fallen asleep), the President called for an end to filibusters of presidential appointments.
“For starters, I ask the Senate to pass a simple rule that all judicial and public service nominations receive a simple up or down vote within 90 days.”
Strong words, as Ted Frank points out, from a man who voted to filibuster Justice Alito. And why the odd terminology of "public service nominations?" Why not just say "executive branch nominations?" Is it because he doesn't want to insult "independent agencies" by lumping them into the executive branch (which is where they belong)?
But on to the substance! Ricochet - what do you think? Should we get rid of the filibuster? My view is that the Constitution is neutral on the point, so the Senate can do as it pleases. Generally, I think that gridlock is a good thing, and so I'm reluctant to grease the wheels of the federal machine. But then again, shouldn't the president get to put a team in place on a majority vote? Perhaps Bork would be on the bench today, rather than Anthony Kennedy, if we had the "up or down vote" rule.
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Jul '10
Re: A Simple Up-or-Down Vote?
I would not pay attention to any such proposal from the bumbling one until every czar is excised from the public payroll.
And then I would laugh at him.
Edited on January 26, 2012 at 10:28pmMay '10
Re: A Simple Up-or-Down Vote?
I'm not sure I would get rid of the filibuster but I would eliminate the hold that individual Senators can apply to nominations. If the opposition wants to mount an old fashioned talk 'em to death filibuster more power to them.
May '10
Re: A Simple Up-or-Down Vote?
It was created to keep the majority from steamrolling the minority...and to force compromises as a result. It should not happen with nominations; there is no "compromise" to be worked out. They should be confirmed or rejected.
May '10
Re: A Simple Up-or-Down Vote?
The rules of the Senate are up to the Senate - period. The President's role is not that of a 'King', he/she is just another 'public servant'. This President unfortunately does not display the class or deference to history to stay on his side of the Capitol building. The sadder story is that the Congress like wimps take his abuse with almost no pushback.
Edited on January 26, 2012 at 10:37pmNov '11
Re: A Simple Up-or-Down Vote?
1) If operating in a vacuum, my Burkean conservative instincts say no: don't rush into changes like that. Protect the rights of the minority to defend itself against majority tyranny.
2) Operating in today's context: doesn't the President's suggestion give political cover for a potential Republican majority to do away with the filibuster altogether (not just for confirmations) if necessary to repeal Obamacare (following Professor Rahe's suggestion)? And would it not probably be worth it?
3) If Republicans don't get rid of it at a time when it is advantageous for them, the Democrats will probably make the move when it works for them, sooner or later. They won't leave it out of principle.
Aug '11
Re: A Simple Up-or-Down Vote?
Because that makes it sound better than "Yet Another Bureaucrat Determined to Control Your Life."
I'm serious. The wording was chosen carefully, to communicate the image of a tireless servant of the people.
Re: A Simple Up-or-Down Vote?
Excellent point, Keith. That might just nail it. But I do have sympathy for EJ's point - maybe let the senators do it if they're really willing to hold an old-fashioned Mr. Smith style talk-a-thon. It used to be fun when Al D'Amato read the Code of Federal Regulations all night!
Re: A Simple Up-or-Down Vote?
DrewInWisconsin
Because that makes it sound better than "Yet Another Bureaucrat Determined to Control Your Life."
I'm serious. The wording was chosen carefully, to communicate the image of a tireless servant of the people. · 10 minutes ago
Probably true. But if so, then that line was about as effective as the spilled milk joke.
Mar '11
Re: A Simple Up-or-Down Vote?
I would be open to eliminating the filibuster on presidential nominations because it is no longer used to block individuals who are deemed unfit for office, but rather for purposes having nothing to do with the nominee himself.
Recently, Republicans in the Senate refused to confirm nominees for the NLRB or the CFPA on the grounds that they do not approve of the existence of either body. The problem for me is that both of these were established by normal legislative procedure, and now a minority wants to essentially veto the legislation post facto with a parliamentary maneuver. I disapprove of both the NLRB and the CFPA, but elections have consequences.
I understand how hard it is to roll back bureaucracy once it comes into existence, but stopping an engine by emptying the oil pan while it is running will kill that engine at some point.
Mar '11
Re: A Simple Up-or-Down Vote?
Leigh: 2) Operating in today's context: doesn't the President's suggestion give political cover for a potential Republican majority to do away with the filibuster altogether (not just for confirmations) if necessary to repeal Obamacare (following Professor Rahe's suggestion)? And would it not probably be worth it?
3) If Republicans don't get rid of it at a time when it is advantageous for them, the Democrats will probably make the move when it works for them, sooner or later. They won't leave it out of principle. · 18 minutes ago
I don't think the filibuster for normal legislation is going anywhere in the near future.
At the moment, victimhood wins many votes. Having the filibuster allows a majority party to avoid doing anything that might offend anyone yet blame the minority party for their inaction. Look at the current Senate: the Democrats haven't passed a budget in years, but the base is convinced that everything is the fault of the obstructionist Republicans.
If the filibuster were repealed, the majority party would actually have to act, and both parties are too scared to do that.
Jun '10
Re: A Simple Up-or-Down Vote?
Keep the filibuster (it sort of keeps the Senate a deliberative body, though with Reid running the place he's made it a joke). But be prepared to use reconciliation to repeal Obamacare. If it could be passed that way, it can be repealed the same way.
Aug '10
Re: A Simple Up-or-Down Vote?
For appointments to Executive branch positions the President should get the folks he picks, provided they are qualified. For the Lords of the Bench, whom we are stuck with for life, maintain the status quo.
May '10
Re: A Simple Up-or-Down Vote?
I vote yes.
Aug '10
Re: A Simple Up-or-Down Vote?
I think we'd all be better off if they filibustered every bill that came down the pike. We might lose a few beneficial ones but we'd also escape thousands of bad ones!
Re: A Simple Up-or-Down Vote?
Would you include the repeal of Romneycare -- oops, I mean Obamacare -- in that?
Mar '11
Re: A Simple Up-or-Down Vote?
Here is what I don't get. Why does everyone protect the filibuster in the Senate yet does not argue to add it to the House? At first glance the only real argument is filibuster should be open to use on nominations. However, I think most of us can agree when one looks at the Senate filibuster is more important from a law standpoint verse nomination standpoint. So either both the house and Senate should have the filibuster or neither should have it, right. Wong.
I don't like the idea of the house having the option due to an increase in grid lock therefore the Senate should not have the option either. However, when I look at the Senate I like the idea of them having it therefore I think the house should have it. My thought process might seem a little irrational but it is not
Mar '11
Re: A Simple Up-or-Down Vote?
Cont.
What I am really thinking is this. I think slowing down legislative process is a good idea so the majority can-not steam roll the minority. However, if both houses have this option the legislative branch would be so slow to the point were nothing including budget would ever get passed. As much as I hate the expansion of the government one needs a system where it does not take an act of God to get a law passed.
The argument that it is due to the make-up of the senate is why only they should have the filibusters does not fly. That is unless the thought process is only one house should have it therefore it should be the Senate due to its make-up and history. I am thinking this though process is a major reason why you don’t really see anyone proposing house filibusters.
Edited on January 27, 2012 at 12:12amFeb '11
Re: A Simple Up-or-Down Vote?
Why should we wish for a Justice Bork instead of Kennedy? Bork doesn't recognize the 9th Amendment (he called it an "ink blot") and his theory of jurisprudence prizes restraint. Wouldn't he be an auto-vote for Obamacare--at least, for Congress' power to legislate an individual mandate to buy health insurance under the Commerce Clause. The precedent weighs heavily against our side.
Jan '11
Re: A Simple Up-or-Down Vote?
Much as I normally love gridlock, the filibuster is a tactic I've never liked. The one good use of it was by Jimmy Stewart.
All it does now is to force every vote to have 60% approval. That would be a reasonable threshold if the approval was based on the merits of the bill. But with the current party system, it doesn't measure support for a bill - it only measures party discipline and how determined each party's leadership can be. In other words, the filibuster is no longer about governance; it's only about party gamesmanship.
Dec '11
Re: A Simple Up-or-Down Vote?
While true that once a nomination is on the floor there is no compromise possible (except horse-trading for votes on other matters), the existence of the filibuster forces compromise in the initial choice of the nominee. That is,a President whose party has a Senate majority must moderate his picks in the first place or else his nominee will face a fillibuster. Without the "protection" of the filibuster his picks, no matter how idealogically extreme, go through. And that is, I think, especially problematical with judicial appointments whose tenure lasts a lifetime.
Unrelatedly, I don't think Bork was fillibustered. He lost on an up or down vote, so the existence of the fillibuster did not give us Justice Kennedy.