Time to Stop the Senate Filibuster Madness

Blocking qualified D.C. Circuit Court nominees is all about denying a president the right to pick judges to fill vacancies.

Stone wall: McConnell & Co. frowns on Obama delays.
National Journal
Norm Ornstein
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Norm Ornstein
Nov. 6, 2013, 3:28 p.m.

This is a column of shout-outs — and call-outs.

First, the shout-outs, start­ing with John Y. Mc­Col­lister, who died re­cently at age 92 in Omaha, Neb. The name will be un­fa­mil­i­ar to most read­ers, but the cognoscenti will know John Y., as every­one called him, as a Re­pub­lic­an mem­ber of Con­gress who served in the 1970s. By today’s GOP stand­ards, John Y. would be a rav­ing lib­er­al, but back in the day he was a straight­for­ward Mid­w­est con­ser­vat­ive. He was also a work­horse, a thought­ful, hon­or­able guy who cared about policy and cared about the in­sti­tu­tion of Con­gress. He did not shout or carry on. He just worked hard, for Neb­raska and the na­tion. I knew him and really liked him, for all those reas­ons. John Y. was un­usu­ally cap­able and gra­cious, but there were a lot of mem­bers back then who cared about their own in­sti­tu­tion and worked hard to show it.

Next comes an­oth­er, more highly pub­li­cized loss, that of former Speak­er of the House Tom Fo­ley. It was my great hon­or to have Tom as a dear friend for more than three dec­ades; Tom Mann and I worked with him on many things, fought with him on oc­ca­sion when he was speak­er, kept up our re­la­tion­ship with him after he left Con­gress in 1995, and were lucky enough (thanks to his won­der­ful wife, Heath­er) to spend time with him at his house shortly be­fore he died. We were es­pe­cially grate­ful to Tom for step­ping up to the plate and do­ing yeo­man duty on the Con­tinu­ity of Gov­ern­ment Com­mis­sion, a meas­ure of his com­mit­ment to pub­lic ser­vice and con­cern about Con­gress in the af­ter­math of 9/11.

Any­body who did not see Bob Michel’s trib­ute to Tom Fo­ley at his me­mori­al ser­vice should log on to C-SPAN.org and watch, and mourn. Michel, the Illinois Re­pub­lic­an and former House minor­ity lead­er, said, “We were too con­di­tioned by our per­son­al and polit­ic­al up­bring­ing to as­sume that we had the mar­ket cornered on polit­ic­al prin­ciple or par­tis­an su­peri­or­ity.” He ad­ded, “One reas­on we were able to work to­geth­er was we both saw the House of Rep­res­ent­at­ives not as a ne­ces­sary evil, but as one of the great cre­ations of a free people.”

I have not known finer people or pub­lic ser­vants than Bob Michel and Tom Fo­ley. As much as any­body or any­thing, they em­body why I so love Con­gress, warts and all. And that is one big reas­on why it is so pain­ful to watch the con­tem­por­ary body, and see so few law­makers who share their con­cern about their own in­sti­tu­tion.

I have thought that John Boehner, the cur­rent House speak­er, fit in that cat­egory. But when he re­cently booted the House Ap­pro­pri­ations Com­mit­tee out of the Cap­it­ol of­fices they had oc­cu­pied for 100 years so that he could get an ex­tra bal­cony over­look­ing the mall, he got on an­oth­er list in­stead. The sys­tem­at­ic ef­forts by the lead­er­ship to de­value the House Ap­pro­pri­ations pan­el, which have even moved its chair­man Har­old Ro­gers to com­plain pub­licly — de­cidedly not his style — do not re­flect a re­spect for the House or its tra­di­tions.

And that brings us to the Sen­ate. I have known Mel Watt for 20 years. He is one of the smartest and finest mem­bers of Con­gress, an all-round good guy who has worked hard and mastered a range of is­sues, in­clud­ing hous­ing, in his long ten­ure on the House Fin­an­cial Ser­vices Com­mit­tee, which has the hous­ing jur­is­dic­tion. Mel Watt was nom­in­ated by Pres­id­ent Obama to head the Fed­er­al Hous­ing Fin­ance Agency — and was blocked by a Re­pub­lic­an fili­buster. The ra­tionale that Watt was not qual­i­fied for the po­s­i­tion was flimsy at best. If in­di­vidu­al sen­at­ors wanted to vote against him, they cer­tainly have the right to do so on any basis. But to deny the pres­id­ent his choice for this post, a vet­er­an and mod­er­ate law­maker with ster­ling cre­den­tials and mor­al char­ac­ter, via fili­buster, is noth­ing short of out­rageous. Only two Re­pub­lic­ans in the Sen­ate, Rob Port­man and Richard Burr, Watt’s col­league from North Car­o­lina, voted for clo­ture.

Watt was not the only vic­tim of a drive-by fili­buster; so was Pa­tri­cia Mil­lett, a su­perbly qual­i­fied and main­stream nom­in­ee for the D.C. Cir­cuit Court of Ap­peals. Only two Re­pub­lic­ans sup­por­ted clo­ture here; Lisa Murkowski and Susan Collins, and three oth­ers voted “present” (which was no help, since any­thing but a vote for clo­ture is mean­ing­less with a rule re­quir­ing 60 votes, peri­od, to end de­bate). The ra­tionale here was even more flimsy than that used against Watt, namely that Obama is try­ing to “pack” the D.C. Cir­cuit. FDR tried to “pack” the Su­preme Court by adding seats to the ex­ist­ing Court. Barack Obama is mov­ing to fill long-stand­ing va­can­cies on the D.C. Cir­cuit. On this Cir­cuit, thanks to a slew of re­tired judges ap­poin­ted by pres­id­ents long gone, con­ser­vat­ives have an edge that Mitch Mc­Con­nell is de­term­ined to keep no mat­ter what.

When Harry Re­id and Mc­Con­nell reached a deal on fili­busters in Janu­ary, it was clear that a key com­pon­ent of that deal was that Re­pub­lic­ans in the Sen­ate would give due de­fer­ence to a newly reelec­ted pres­id­ent in his ex­ec­ut­ive nom­in­a­tions, and would only op­pose ju­di­cial nom­in­a­tions for courts of ap­peals un­der “ex­traordin­ary cir­cum­stances,” which clearly means judges without clear qual­i­fic­a­tions or ex­per­i­ence, or ex­treme ideo­lo­gies. No one could ac­cuse Mil­lett of either of those char­ac­ter­ist­ics. This is all about deny­ing a pres­id­ent the right to pick judges to fill ex­ist­ing va­can­cies. Two more nom­in­ees for the D.C. Cir­cuit are com­ing up soon, the real test of wheth­er Re­pub­lic­ans will con­tin­ue to flout the Janu­ary agree­ment and threaten fun­da­ment­al comity in the Sen­ate.

Watch­ing sen­at­ors like Lamar Al­ex­an­der, Bob Cork­er, Mike Jo­hanns (John Y. would not ap­prove), Mark Kirk, John Mc­Cain, and Lind­sey Gra­ham join both of these fili­busters, and Lisa Murkowski and Susan Collins join one, is pain­ful. These are the prob­lem solv­ers, and they have let re­flex­ive party loy­alty over­come what should be a pro­tec­tion for the Sen­ate and its tra­di­tions. These kinds of fili­busters are not a part of those tra­di­tions.

If the oth­er two D.C. Cir­cuit nom­in­ees are fili­bustered and blocked, I would sup­port Harry Re­id’s move to change the rules now, to move from a 60-vote re­quire­ment to stop de­bate and vote to a 40-vote re­quire­ment to con­tin­ue de­bate. The ar­gu­ment that if he does so, Re­pub­lic­ans will do the same thing when they take the White House and Sen­ate is a bad one: Can any­one doubt that Mc­Con­nell would blow up the fili­buster rule in a nano­second if he had the abil­ity to fill all courts with rad­ic­al con­ser­vat­ives like Janice Ro­gers Brown for dec­ades to come? I hope it does not come to this — and that the prob­lem solv­ers in the Sen­ate keep their titles, pre­serve their in­sti­tu­tion, and stop the fili­buster mad­ness.

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